Test The Material Constitutional Court Number 42/puu-Viii/2010 2010

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 42/PUU-VIII/2010 Tahun 2010

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Microsoft Word-42-Verdict SUSNO-2010 Edy _ Edit _ ready-READ 24-9-10 _ irvan _ .doc VERDICT Number 42/PUU-VIII/2010 for the SAKE of FAIRNESS UPON the DIVINITY of the ONE TRUE GOD of the CONSTITUTIONAL COURT of the REPUBLIC of INDONESIA [1.1] Are checked, prosecute, and disconnected things of the Constitution on the first and last levels, dropping a verdict in the case of application for Testing Act No. 13 of 2006 on the protection of witnesses and Victims against the Constitution of the Republic of Indonesia in 1945 , submitted by: [1.2] Drs. Susno Duadji, s. h., m.SC., individual citizens of Indonesia, the work of members of the national police, located at Jalan Cibodas 1 A-3 number 7, housing Beautiful Cinere, Depok, Cinere, West Java. Based on a power of attorney dated June 09, 2010, giving authority to the 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 Aziz Armain, S.H., H. M. Husni Maderi, S. Sos., S.H., Tjoetjoe Sandjaja Hernanto, S.H., Hj. Kartika Daughter Yosodiningrat, S. H, LL. M. Radhitya, H. 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 Advocate located at Kartika Chandra Hotel, 5th floor office building, Jalan Jenderal Gatot Subroto, 12060 Jakarta, either singly or together to act for and on behalf of the giver of power; Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-Appellant; [1.3] Read the petition of the applicant; Hearing a description of the applicant; Examine the evidence of the Applicant; Hear experts from information of the applicant;

2 to hear and read the affidavits of the Government; Hear and read the affidavits of the House of representatives; Read the affidavits of Witnesses and victims protection agency; Read the written conclusions of the applicant and the Government; 2. SIT the MATTER [2.1] considering that the applicant had filed a petition that was then listed on the Registrar of the Constitutional Court (hereinafter referred to as the clerk of the Court) on Wednesday 16 June 2010 with registration of case Number 42/PUU-VIII/2010, that has been fixed and accepted at the Registrar of the Court on July 8, 2010, outlining the following things: the authority of the Constitutional Court and the Legal Standing of the applicant Authority the Constitutional Court i. 1. The applicant requested the Constitutional Court ("the COURT") perform testing against article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims ("Law No. 13 of 2006"); 2. Refer to the provisions of article 24C paragraph (1) the CONSTITUTION of 1945 juncto article 10 paragraph (1) letter a Act No. 24 of 2003 on the Constitutional Court (the "COURT of LAW"), which asserts that one of the powers of the Constitutional Court is conducting a testing legislation against the 1945 Constitution ("Constitution"). Article 24C paragraph (1) of the Constitution, among others, stated: "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final to examine legislation against the Constitution." Article 10 paragraph (1) letter a of the ACT the COURT inter alia States: "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final": a. test legislation against the Constitution of the Republic of Indonesia in 1945, ... "

3 3. In addition, article 7 of the Act No. 10 of 2004 concerning the formation of the Legislation, regulating the hierarchical position of that Constitution is higher than laws, therefore any provision of laws should not contradict the Constitution. If there is a provision in the legislation that conflicted with the Constitution, then that provision can be petitioned to be tested through the mechanism of testing law; 4. Based on the above, the Constitutional Court is authorized to check and disconnect the test application this Act. II. The position of the law (legal standing) the applicant 1. That Article 51 paragraph (1) of the ACT the COURT set out that: "the applicant is a party which considers the right and/or authority konstitusionalnya harmed by the enactment of the Act, namely: a. the individual citizen of Indonesia; b. the unity of Community law all still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation; c. a public or private legal entities; or d. the State institutions. Further explanation of article 51 paragraph (1) States: the definition of "constitutional rights" are the rights set forth in the Constitution of the Republic of Indonesia in 1945. Explanation of article 51 paragraph (1) of the ACT does not regulate the powers regarding the CONSTITUTIONAL COURT constitutional, yet with a menganalogikannya to the definition of "constitutional rights" then it can be inferred that is constitutional authority is the authority that is set in the Constitution. 2. That the applicant is an individual citizen of Indonesia (proof of P-3) who konstitusionalnya rights have been harmed by the enactment of Section 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims ("Law No. 13 of 2006") which governs:


4 "a witness who is also a suspect in the same case cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty, but his testimony could be used as the consideration of judges in the criminal will relieve the dropped". 3. That the applicant is an individual citizen of Indonesia in the appropriate article 27 paragraph (1) of the Constitution shall be entitled to participate in the development of the right to participate in the legal and governance where the applicant reported crimes that occur in a systematic and structured ditubuh police force of the Republic of Indonesia To the case: the Mafia Eradication Task Force (TASK FORCE) on March 18, 2010 and the date of April 12, 2010 (proof of P-4) and reported :-And money laundering criminal acts allegedly committed by the suspect Gayus Tambunan. -Criminal acts of corruption/bribery in the case of PT Arwana Salmah Lestari-the use of the budget at the National Police Headquarters and Police-Police throughout Indonesia. To the HOUSE of REPRESENTATIVES Commission III on April 8, 2010, (proof of P-5) with the report:-crime and money laundering allegedly committed by the suspect Gayus Tambunan. -Criminal acts of corruption/bribery in the case of PT Arwana Salmah Sustainable 4. That before the applicant has also provided testimony in the mass media both print and electronic about the alleged criminal acts of corruption in a systematic and structured also involves persons legal authorities both in the police force, Prosecutors and Judges the person in court. (vide Evidence P-5); 5. That the Applicant's participation was up responded well by authorities including the police who have done the investigation and proceedings against the Applicant reports the crime and especially money laundering allegedly committed by the suspect Gayus Tambunan and currently the process is being kept going;

5 6. That after reporting the applicant has applied for a witness protection to witnesses and Victims Protection Agency on May 4, 2010 (proof of P-6) against the cases that have been reported to the HOUSE of REPRESENTATIVES of the applicant and the legal Mafia Eradication task force, and has produced a Number of protection Agreement PERJ-007/i. LPSK/3/05/2010 between LPSK with Applicant (proof of P-7) 7. That the applicant's statements that other criminal acts of corruption/bribery in pt. Salmah Arowana Lestari, the police investigation, the applicant has been summoned by POLICE as a witness over BARESKRIM police report Number Pol: LP/272/IV/2010/Bareksrim 21 April 2010 with the summons Number s. Pgl/234/IV/2010 Pidkor/WORL & i.e. on April 30, 2010 and based on the summons Number s. Pgl/283/V/Pidkor/WORL & 2010 on May 7, 2010. (Proof of P-8) 8. That on May 11, 2010 are at the time the applicant meet the Police Summons as a witness, Police improve the status of the applicant being a suspect and then making arrests, detention and the investigation against the applicant upon things that are reported to the applicant i.e. a criminal offence of corruption/bribery in pt. Salmah Arowana Sustainably on the basis of the detention Warrant Number SP. Han/12/V/Pidkor/WORL & 2010 and thereafter the applicant was placed in State custody homes of Central Jakarta in the Mako Brimob Police Corps since 11 May 2010. (Proof of P-9); 9. That the Act of detention carried out by the POLICE against BARESKRIM Applicant also based upon the description of Kadiv several National Police Headquarters public relations mass media both print and electronic (proof of P-10) that in essence says the action against the applicant's detention is also based upon the existence of the provisions of article 10 and paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and victims, which reads: "a Witness who is also a suspect in the same case cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty, but his testimony could be used as the consideration of judges in the criminal will relieve the dropped ";

6 10. That the applicant after undergoing detention is also subject to status of suspects in criminal acts of Corruption in the management of the use of and accountability for the budget of a grant from the provincial Government of West Java in 2008 by Police in West Java and the range, based on the police report Number Pol: LP/261/IV/2010/BARESKRIM on 12 April 2010, as stated in the applicant's BAP as a suspect June 10, 2010 (proof of P-10); 11. That the applicant's position that previously was a witness and the rapporteur has asked for legal protection as a witness to the rapporteur in witness protection and Victim but suddenly have been made suspects and instantly have performed the Act of detention, is a violation of the rights of the konstitusionalnya and the applicant has been aggrieved by the interpretation of the provisions of article 10 and paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims by the police; 12. That as a result of the arrest, detention and investigation as a suspect, the Appellant suffered a loss of constitutional, namely: first, the applicant has lost the right to participate in law and Government, as guaranteed by article 27 paragraph (1) of the Constitution. The right to participate in the law and the Government was lost because the applicant had been detained by Investigators for reasons other than as a witness, Appellant has also been designated as a suspect; Second, the applicant has lost the right to the recognition, guarantees, protection and legal certainty are fair, as guaranteed by article 28D paragraph (1) of the CONSTITUTION of 1945; Third, the applicant has lost the rights to the sense of security and protection from the threat of fear to do, as guaranteed by article 28G paragraph (1) of the CONSTITUTION of 1945; Fourth, the applicant has lost the rights and freedom to meet the demands of a fair in accordance with the moral considerations, religious values, security and public order in a democratic society, as guaranteed by article 28J paragraph (2) of the CONSTITUTION of 1945;


7 13. That refers to the Court ruling since the verdict Number 006/PUU-III/2005 of 31 May 2005 and decision number 11/PUU-V/2007 20 September 2007 and subsequent rulings, held that the loss of rights and/or constitutional authority as intended by article 51 paragraph (1) of the ACT the COURT must meet five conditions, namely: a. the existence of rights and/or constitutional authority the applicant granted by the Constitution; b. rights and/or the constitutional authority by the applicant are considered impaired by the enactment of legislation which petitioned testing; c. the constitutional harm must be specific (Special) and the actual potential or at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship (causal verband) between the losses in question and the enactment of legislation which petitioned testing; e. of the possibility that by dikabulkannya the petition, then the constitutional losses as postulated would not or no longer occur; Thus there is an absolute five conditions that must be met in the test Act terthadap Constitution, the applicant has legal standing. The first requirement is the qualifications of the applicant as a citizen of the Republic of Indonesia, to act as the applicant as defined in article 51 paragraph (1) of the ACT the COURT. The second requirement with the enactment of a law the rights and/or constitutional authority the applicant harm. Third, the nature of the specific constitutional harm. The fourth such losses incurred due to the enactment of the Bill is requested. Fifth, the constitutional losses won't happen again if the petition is granted. 2. That the above description proves that the applicant (individual citizens of Indonesia) has the position of law (legal standing) to act as the applicant in the application for testing these laws. That on the basis of qualifications and terms of the above, then the applicant is a citizen of Indonesia, have actually been harmed the rights and/or 8 konstitusionalnya authority due to the enactment of Section 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and victims, because of his position as a witness can be a suspect in the same case. So the right to the protection of being lost. Finally, if the application for testing against the provisions of article 10 and paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and victims, is granted, then the right and/or constitutional authority the applicant no longer harmed. Thus, the terms of the position of the law (legal standing) the applicant has appropriate and meet the conditions. III. The reasons the applicant applying for a Testing article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims 1. He did that since the changes to the Constitution, there has been a fundamental change in the system's attempt of the Republic of Indonesia. Principal changes made on the use of human rights, including equality in law and Government, the right to recognition, guarantees, protection and legal certainty are fair; 2. That each person has the right to protection of personal self, family, honor, dignity, and berthak over the sense of security and protection from the threat of fear to do or not do something which is a human right; 3. That the Constitution legally guarantees all citizens a concurrent position in law and Government and must respect the law and Government as defined by article 27 paragraph (1) of the CONSTITUTION of 1945; 4. That the Constitution legally provides a powerful guarantee for the recognition of human rights. Constitution Article 28D paragraph (1), provide the instruments in the form of the right to the recognition, guarantees, protection and legal certainty of fair and equal treatment before the law;

9 5. That likewise according to the provisions of the Constitution of article 28G paragraph (1) States: "everyone has the right to protection of personal self, family, honor, dignity, and hartabenda under his control, as well as the right to security and protection from the threat of fear to do or not do something which is a basic right". But in fact, the law on entitlement to a sense of security and protection from the threat of fear to do or not do something contains fundamental flaws still, because the grounds at the same time one can be defined as a witness and as a suspect, without any clear protection against position as a witness; 6. That article 10 paragraph (1) are clearly related and an integral part of article 4 of LAW No. 13 of 2006, which States, "witness protection and Victim aims to provide a sense of security to Witnesses and/or Victims in giving information on any criminal justice process". The protection of witnesses is generally known as the protection of "Whistleblowers" who cannot be convicted. In this connection, Stephen m. Kohn, stated, "... courts have recognized that the speech of government employees must be protected, even if it includes direct criticisms of their employing 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 occupies the "highest roong" "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 the protection of witnesses in Indonesia are mainly related to the eradication of corruption, not solely on the basis of the provisions of article 10 paragraph (1) of LAW No. 13 of 2006, due on April 18, 2006 Indonesia had signed the United Nations Convention Against Corruption, 2003 (United Nations Convention on Anti-corruption, 2003) where in article 32 of the UN


10 Convention Against Corruption 2003 already signed by Indonesia providing protection to witnesses who provide information and provide protection to the person who reported the existence of the criminal offence of corruption. In article 32 paragraph (1), 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 offenses established in accordance with this Convention and, as appropriate, for their relatives and other persons close to them". Then also stated in article 32 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 extents, to the necessary and feasible, relocating them and permitting, where appropriate, non-disclosure or limitations on the disclosure of information concerning the identity and whereabouts of 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 permitting testimony to be given through the use of communications technology such as video or other adequate means. 8. That because Indonesia had signed the United Nations Convention Against Corruption, 2003 (United Nations Convention on Anti-corruption, 2003), and constituting it into LAW number 7 of 2006, Indonesia the provisions of article 32 paragraph (1) and paragraph (2) legally binding, so that the Republic of Indonesia is obligated to provide protection to witnesses who reported the existence of any act of corruption as stated by article 32 paragraph (1) and paragraph (2) the United Nations Convention Against Corruption , 2003 (United Nations Convention on Anti-corruption, 2003);

11 9. That in consideration of the Act No. 13 of 2006 on the protection of witnesses and Victims stated, "that one tool evidence of legitimate criminal justice is in the process of witnesses and/or victims who hear, see, or experience the onset of a criminal act in an effort to seek and find clarity about the criminal offence committed by the perpetrator of a criminal offence"; Stated in article 1 paragraph (1) of Act No. 13 of 2006 on the protection of witnesses and victims: "the witness is a person who can provide information to the interests of the investigation, investigation, prosecution, and examination in the court hearing of a criminal matter that he heard himself, he sees himself, and/or he experienced". In addition it has also stated in article 5 of the Act No. 13 of 2006 on the protection of witnesses and victims: (1) Witnesses and victims are entitled to: a. obtain the protection of the security of the pribad family, and his possessions, and free from threats with regard to testimony which will, is being, or has been given by him; b. participate in the process of selecting and specifying the form of protection and security support; c. provides information without any pressure; d. gets a translator; e. free of questions Lariat; f. information about developments in the case; g. information about court rulings; h. knowing in regard to convict freed; I got a new identity; j. get new dwelling places; k. obtain reimbursement of transportation expenses in accordance with needs; b. got legal advice; and/or 12 m. obtain help while living expenses until the time limit the protection ends. (2) the right referred to in paragraph (1) was given to Witnesses and/or victims of a criminal offence in certain cases in accordance with the decision of the LPSK. 10. That in order to provide a comparison of the protection of Witnesses in some countries can be seen in the table below: No. Country name protection to witnesses of the rules governing the Status of Suspects 1. United States protection from dismissal, demotion, suspension, threats, disturbances and acts of discrimination. Whistleblower Protection Act of 1989 is not 2. South Africa's protection of occupational detriment or loss related to the position or work; Article 3 Protected Disclosures Act No. 26 of 2000 No 3. Canada's protection from the giver of work that gives punishment discipline, lowering the rank, dismissed or committing any disadvantage in terms of employment with the aim to prevent workers provide information to the Government or law enforcement agency or to respond to workers who provide information. Section 425.1 Criminal Code of Canada 4. Witness protection and victims of Indonesia aims to provide a sense of security to Witnesses and/or victims in criminal justice processes. Witnesses, victims, and the rapporteur could not be sued over reports, testimony that would be, are being, or have been given by him. Article 4 of law No. 13 of 2006 article 10 paragraph (1) of LAW No. 13 of 2006 article 10 paragraph (2) a witness who is also a suspect in the same case can be prosecuted. 5. New South Wales, Australia-identity concealed; -Protection from acts of revenge; -There is no accountability for criminal or civil basis; -Protection from "defame" (libel claims); -The protection of conditional if the name is released to the media; Article 20 and 21 Protected Disclosures Act 1994 No 6. United Kingdom-should not be fired for being a whistleblower-protection from adverse treatment and viktimisasi/damage the article 1 and 2 Public Interest Disclosure Act 1998 are not


13 11. That particular position of a witness who also became a suspect in the same case is set out in article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and victims, States: "a witness who is also a suspect in the same case cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty, but his testimony could be used as the consideration of judges in the criminal will relieve the dropped"; 12. That the existence of 4 Article 10 paragraph (2) could be said to be suddenly appear and set up something that is not regulated in law No. 13 of 2006. Article 10 paragraph (2) is not legally have a clear and powerful pitch with stuff that is governed by LAW No. 13 of 2006, in particular on articles prior to article 10; 13. That norm and or legal issue is regulated by article 10 paragraph (2) of LAW No. 13 of 2006, known in the doctrine and the practice of law in countries that adhere to the Anglo-Saxon system as "Plea Bargaining". In the practice of plea bargaining is carried out by making a statement of guilt or known as "guilty plea". With the statement this is a guilty defendant will receive a penalty reduction (Andrew Ashworth: 2000, Sentencing & Garrido, third edition, Butterworths, p. 24); because plea bargaining, as expressed by John Sprack, least contains four sense, "It can mean an agreement between the judge and the accused that if he pleads guilty to some or all of the offenses charged against him the sentence will or will not take a certain form ... ... ... ... .... Second, the plea bargaining can mean an undertaking by the prosecution that if the accused will admit to certain charges they will refrain from putting more serious charge into the indictment or will ask the judge to impose a light sentence highly ... .... Thirdly, plea bargaining may refer to the defence agreeing with the prosecution that if the accused pleads guilty to a lesser offence they accept the plea ... Lastly, it may refer to the prosecution agreeing not to proceed on one or more counts in the indictment against the accused if he will plead guilty to the remainder "(John Sprack: EMMINS ON CRIMINAL, PROCEDURE, Ninth Edition, Oxford, p. 251);

14 14. That legal regime regulating the position of witnesses and victims of the regime is very different from the laws governing "witness who is also a suspect in the same case". Law provisions governing the rights of witnesses and victims are clearly and expressly provided for in ACT No. 13 of 2006, while the regime of laws governing the position of witnesses who also became a suspect in the same case governed by the CRIMINAL PROCEDURE CODE ACT No. 8 of 1981, limited to provide protection against the interests of the suspect or the accused, not to provide protection of the interests of the witness or the victim of Criminal deeds; 15. That the provision about the position of a witness who also became a suspect in the same case, according to article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims, in fact, contrary to the provisions of article 27 paragraph (1) of the Constitution, which States: "all citizens simultaneously its position in law and Government and obliged to uphold the law and rule it with no kecualinya"; Article 28D paragraph (1) of the Constitution, which States: "everyone has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law"; Article 28G paragraph (1) of the Constitution, which States: "everyone has the right to protection of personal self, family, honor, dignity, and property under his control, as well as the right to security and protection from the threat of fear to do or not do something which is a human right"; Article 28J paragraph (2) of the Constitution states, "in the exercise of rights and freedom, everyone is subject to the mandatory limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the demands of a fair in accordance with considerations of a moral, religious values, security and public order in a democratic society";

15 16. Recognition, guarantees, protection and legal certainty the fair as mentioned above also includes recognition, guarantees, and protection of legal principles that apply universally. One of the basic laws that recognized its existence in Indonesia's legal system is the protection of witnesses; 17. the factual basis That the applicant has been designated as a suspect and was arrested by the police of the Republic of Indonesia based on the arrest warrant on May 10, 2010 only sourced from witnesses who became a suspect in the case that the applicant Commission report to PARLIAMENT and the legal Mafia Eradication task force is supported by other evidence, or in other words the applicant has been designated as a suspect , arrested, detained and disidik as a suspect by Police Investigators without tools is based on sufficient evidence. (vide Evidence P-9); 18. That thus it is evident that the arrest, detention and investigation of the applicant as a suspect by Police Investigators is based on "conditioning" situation by investigators and lies made by terperiksa at the request of investigators, and was not based on evidence that is valid according to the law; 19. That despite previous Applicant has requested protection to the applicant's letter of compliance with the LPSK may 4 2010 (vide evidence P-6), but the applicant was arrested and still detained by Investigators Bareskrim, arguing that the actions taken have Investigators pursuant to section 10 paragraph (2) of LAW No. 13 of 2006, which States, "a witness who is also a suspect in the same case cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty of but his testimony could be made criminal judges in consideration of ease that would be dropped "; 20. According to article 27 paragraph (1) of the Constitution, which States: "all citizens simultaneously its position in law and Government and obliged to uphold the law and rule it with no kecualinya";


28D Article 16 paragraph (1) of the Constitution states, "every person has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law". The norms of the Constitution above reflects the principles of human rights applicable to all human beings universally. In the same qualification, every person, including the applicant; 21. That the provisions of article 10 and paragraph (2) of LAW No. 13 of 2006 has opened up opportunities for the Ombudsman to intervene against the authority of the LPSK without control of the judicial branch of power, since the setting of a witness becomes a suspect and then do the detention can be done unilaterally by the investigator without considering the presence of other State agencies that the authority has an obligation gives the protection of witnesses in criminal cases; 22. That due to the absence of a clear formulation of the position of "witness" and "the usual suspects" as well as in conditions of how someone can be "suspect" when at the same time also the status as a "complainant" witnesses has led multi-analysis and potentially raises the interpretation that is unconstitutional, therefore then the provisions of article 10 and paragraph (2) of LAW No. 13 of 2006 had led to legal uncertainty and conflicting with constitutional rights as set in the Constitution of 1945; 23. Description of the above prove that the provisions contained in article 10 paragraph (2) of LAW No. 13 of 2006 is contrary to the principle of recognition, guarantees, protection and legal certainty, protection of personal self, family, honor, dignity, and property under his control, as well as the right to security and protection from the threat of fear to do or not do something which is a human right , as intended by article 28D paragraph (1) of the Constitution and article 28G and paragraph (1) of the CONSTITUTION of 1945; 24. That basically the provisions of article 28, the Constitution is to give protection to nationals of the treatment by 17 other citizens and also from the State. For example Article 28J paragraph (2) of the Constitution states, "in the exercise of rights and freedom, everyone is subject to the mandatory limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the demands of a fair in accordance with considerations of a moral, religious values, security and public order in a democratic society". The formulation of article 28 of the constitutional norms that can contain limits the rights of a person and the State (through legislation), but restrictions are exercised with the terms which is finite, i.e. "with solely to guarantee ... and to meet the demands of a fair ...". In other words, the Constitution restricts the rights of citizens (all restrictions was done through legislation) and pembatasannya must be done proportionately according to the purpose or other interests shall be protected by law. 25. That article 10 paragraph (2) is also contrary to Article 28J paragraph (2) of the Constitution, since article 10 paragraph (2) contains a conflict with article 28J paragraph (2) of the Constitution, because this article is potentially limiting the "reverence for the rights and freedoms of others and for meeting the demands of a fair in accordance with considerations of a moral, religious values, security and public order in a democratic society" , especially related to the position as "whistle blower". In other words, the existence of this article, preventing people to make "a fair demands in accordance with the moral and religious values" such as the prevention and disclosure of corruption, or because it would be bad for a witness or complainant in the case of corruption, as a witness or complainant may serve as witnesses and at the same time as a suspect; 26. That the existence of the alleged criminal acts involving the applicant should be associated with the provision of article 10 paragraph (1) of LAW No. 13 of 2006, "witnesses, victims, and the Rapporteur can not legally be prosecuted either criminal or civil charges over reports, testimony that would, were he has been or 18", because the witnesses must be the protection and recognition in order to achieve legal certainty; 27. The provisions of article 10 and paragraph (2) of LAW No. 13 of 2006, if used incorrectly interpreted article a quo is a potential dikualifikasi article violates the principle of respect and recognition of human rights, in this case the rights of witnesses and victims. With the formulation of the Article, then the article a quo disproportionate and excessive and by itself violates Section 28D subsection (1) of the Constitution and article 28G paragraph (1) of the CONSTITUTION of 1945; 28. That article 10 paragraph (2) of LAW No. 13 of 2006 a quo, if used with potentially wrongly interpreted to inhibit participation of the community to participate in law and Government, especially in making reports of crime be, like the presence of corruption and mafia law or as reported by the applicant; 29. That article 10 paragraph (2) of LAW No. 13 of 2006 a quo, if used with potentially wrongly interpreted to eliminate the existence of legal certainty, as someone who became a witness or complainant of the existence of a crime, can be considered as part of the crime and can be prosecuted in criminal for crimes that occur on a Applicant as dialporkannya (proof of P-11); 30. That article 10 paragraph (2) of LAW No. 13 of 2006, if used wrongly interpreted to potentially disappear right up a sense of security and protection from the threat of fear to do, for the complainant or witness to a crime because it can be used as part of the crime that can be prosecuted; 31. That article 10 paragraph (2) of LAW No. 13 of 2006, if used incorrectly interpreted to potentially prevent people to make "a fair demands in accordance with the moral and religious values" such as the prevention and disclosure of corruption or as performed by "whistle-blowers", because it would be bad for a witness or complainant in the case of corruption, because the witness


19 or Rapporteur may serve as witnesses and at the same time as a suspect; 32. That article 10 paragraph (2) of LAW No. 13 of 2006 would have been detrimental to the applicant are actual, because: (1) the applicant has been detained and is set as a suspect by Investigators and sought after-find other errors; (2) the applicant had lost his freedom to give testimony to the agency that it believed and freedom of opinion; (3) the applicant has lost the right to communicate in decent and humane; (4) the applicant had suffered intimidation during in detention; (5) the applicant had received inhumane treatment, due to an inappropriate restriction to meet the family and relatives; 33. That the arrests, anchoring and an examination of the applicant as a suspect by investigators – nothing, other than the embodiment of revenge against the applicant as an example of problems in the use of and accountability for the budget of a grant from the provincial Government of West Java in 2008 which is disangkakan to the applicant (proof of P-12), problems occurred in 2008 has never been audited by CPC and otherwise problematic, even upon the applicant's success in the West Java Police , The applicant has been promoted to Kabareskrim. After the appellant testify the existence of the mafia practices law in Police institutions so that problem is in question and the applicant designated as a suspect. It is distinctively not commendable deeds unveil from Police investigators and other law enforcement officials as well as members of the Community (the legal mafia) who team up to do evil programmatically, systematic and structured. 34. That it is very urgent to prevent Police Investigators using the provisions of article 10 and paragraph (2) of LAW No. 13 of 2006, because it is important to give the kepercaayaan society towards the Protection of witnesses and victims, in providing protection against 20 whistle-blower who opened and or report publicly to the community the existence of corruption in the work place environment in order to eradicate corruption; In addition it is also urgent to put an end to a dispute between the Police and the investigating authorities of the institution of witness protection and Victim (LPSK) involving the President of the Republic of Indonesia; 35. That is therefore very relevant and significant publication of the verdict in the case of testing the provision of article 10 paragraph (2) of LAW No. 13 of 2006 against the Constitution is to prevent violations of the rights of the applicant as a human being if the legal norms of article 10 paragraph (2) of LAW No. 13 of 2006 applied while the inspection over the principal application is still running even though the applicant's constitutional rights were harmed can not be restored in the final award. In the case a quo verdict sidelines required to prevent possible loss the applicant's constitutional when becoming a defendant even though the basic law or the law on the article it is being examined in the tests against the Constitution in the Courts. 36. That factually there is a difference of interpretation between the protection of witnesses and Victims (LPSK) with Police Investigators, to the meaning contained in the sense of "witnesses who also suspects" as defined in article 10 paragraph (2) of LAW No. 13 of 2006 on the protection of witnesses and Victims; 37. A difference of interpretation about the cases of arrest, detention and investigation as a suspect of the applicant between witness protection and victims with Police Investigators, has involved the President of Republic of Indonesia as head of Government, because the protection of witnesses and victims to the President (LPSK) has asked the President to be a facilitator in the settlement of the dispute between the national police authorities and the institutions of witness protection and Victim to the President (LPSK); (Proof of P-13) 38. That the existence of a difference of interpretation between the protection of witnesses and Victims (LPSK) with Police Investigators, about the appropriate place because it feels both have position and authority in question the applicant, then sepatut and the applicant's position should be returned in its original state as a free man, 21 prior to the arrest, detention and investigation as a suspect by Police Investigators; 39. That legislation since the onset of political change in Constitution, in fact is a viable pay respects human rights, although there is still a significant waiver of certain rights by certain institutions as the holder of the authorization can interpret certain provisions. So the legislation is often-times can be interpreted with the people's interests are adverse, seekers of truth and justice and does not favour the interests of respect for human rights; 40. That the applicant as a citizen of Indonesia, also has the equation of positions in law and Government as well as the right to equal treatment before the law, as guaranteed in article 27 paragraph (1) and section 28D subsection (1) of the Constitution. Therefore it is not an exaggeration of the applicant also argued that the facts of the law, a witness to the reporters who provide information in the case of alleged criminal acts of corruption do not or have not been prosecuted in criminal, namely among others (proof of P-14): a. Miranda Gultom bribe Cases dealt with by the KPK, to witness Agus Tjondro rapporteur have been exempted from lawsuits as a suspect. b. corruption funds the Foundation Bank Indonesia Anwar Nasution, to witness, as the giver information exempted by the KPK to not be used as a suspect. 41. That is, therefore, is a conditio sine qua non for respect of human rights, to conduct testing against laws that contain "defects" that can diinterperatsikan blindly and in accordance with its importance by the authorities; 42. That the protection of witnesses in the fact that, in order for the rapporteur, as stated in the General Explanatory ACT of 2006, Nomor13 got "... legal protection and security over its report that he did not feel threatened or intimidated both rights as well as his soul. With the guarantee of legal protection and security


22, is expected to allow the State nurtures the community no longer feel afraid to report a crime he knew to law enforcement, because of worry or fear his soul is threatened by certain parties ", including the investigators. 43. all the explanation above prove that the determination of a witness becomes a suspect can be arrested, detained and disidik as a suspect by investigators has injure the or at least potentially injure the independence of the institution of witness protection and victim, that betugas provide protection to witnesses and victims who reported the existence of a criminal deed; 44. with respect to the fact That trersebut, then it became the authority of the Constitutional Court (MK) to perform tasks that are performed by him, which was mandated to him by the Constitution. In accordance with the spirit of the mandate of Constitution to the Constitutional Court, the CONSTITUTIONAL COURT is the guardian of the Constitution and the final interpreter of the Constitution. Therefore, based on the above description MK petitioned to declare article 10 paragraph (2) of LAW No. 13 of 2006 is contrary to Article 28D paragraph (1), article 28G paragraph (1) of the Constitution, and Article 28J paragraph (2) of the Constitution, and therefore unconstitutional then declared to have no force of law that are binding. 45. That the applicant also realized, when the Constitutional Court declared article 10 paragraph (2) of LAW No. 13 of 2006 is contrary to Article 28D paragraph (1) of the Constitution and article 28G paragraph (1) of the Constitution and does not have binding legal force, it will be a vacancy for law (wetsvacuum) about a witness who also became a suspect in the same case cannot be exempted from criminal prosecution. To address the vacuum of law (wetsvacuum), the Applicant appealed to the Constitutional Court for so may consider to give up constitutional interpretation of article 10 paragraph (2) of LAW No. 13 of 2006, still have the force of law binds all a witness who also became a suspect in the same case cannot be acquitted of the criminal charges, should be meant that the position of the suspect set ESP. before giving testimony in the matter;

23 because the CONSTITUTIONAL COURT is the final interpreter of the Constitution then petitioned the COURT to at least give a constitutional interpretation. IV. Conclusion 1. That the applicant has legal standing in the case of the filing of the petition; 2. That the applicant as a citizen of Indonesia has performed its obligations to provide reports of the alleged criminal acts of corruption involving law enforcement officers in some cases include: crime and money laundering allegedly committed by the suspect Gayus Tambunan, a criminal offence of corruption/bribery in the case of the PT. Salmah Arowana Sustainably, as well as the use of STATE BUDGET funds, grants, Export Credits by the National Police Headquarters and Police-Police throughout Indonesia; 3. That the applicant has suffered loss of constitutional: first, the applicant has lost the right to participate in law and Government, as guaranteed by article 27 paragraph (1) of the Constitution. The right to participate in the law and the Government was lost because the applicant had been detained by Investigators for reasons other than as a witness, Appellant has also been designated as a suspect; Second, the applicant has lost the right to the recognition, guarantees, protection and legal certainty are fair, as guaranteed by article 28D paragraph (1) of the CONSTITUTION of 1945; Third, the applicant has lost the rights to the sense of security and protection from the threat of fear to do, as guaranteed by article 28G paragraph (1) of the CONSTITUTION of 1945; Fourth, the applicant has lost the rights and freedom to meet the demands of a fair in accordance with the moral considerations, religious values, security and public order in a democratic society, particularly related to the "corruption prevention" as guaranteed by article 28J paragraph (2) of the CONSTITUTION of 1945; 4. That the applicant had been arrested, detained and assigned as a suspect and disidik as a suspect based on witness descriptions who was given due to the "insidious" situation by investigators and 24 lies made by terperiksa at the request of investigators, and was not based on evidence that is valid according to the law; 5. That article 10 paragraph (2) of LAW No. 13 of 2006 a quo, the potential to impede the participation of the community to participate in law and Government, especially in making reports of crime be, like the presence of corruption and mafia law or as reported by the applicant; 6. That article 10 paragraph (2) of LAW No. 13 of 2006 a quo, potentially to eliminate the existence of legal certainty, as someone who became a witness or Complainant of the existence of a crime, can be considered as part of the crime and can be prosecuted in criminal for crimes that are reported as occurring on the applicant; 7. That article 10 paragraph (2) of LAW No. 13 of 2006, could potentially be a precedent so that eliminates the right to security and protection from the threat of fear to do, for the complainant or witness to a crime because it can be used as part of the crime that can be prosecuted; 8. That article 10 paragraph (2) of LAW No. 13 of 2006, menadi potentially precedent and potentially preventing people to make "a fair demands in accordance with the moral and religious values" such as the prevention and disclosure of corruption or as performed by "whistle-blowers", because it would be bad for a witness or complainant in the case of corruption, as a witness or complainant may serve as witnesses and at the same time as a suspect; 9. That article 10 paragraph (2) of LAW No. 13 of 2006 would have been detrimental to the applicant's actual, because: a. the applicant has been detained and is set as a suspect by Investigators and sought after-find other errors; b. the applicant has lost his freedom to give testimony to the agency that it believed and freedom of opinion; c. the applicant has lost the right to communicate in decent and humane; d. the applicant had suffered intimidation during in detention;


25. The applicant has obtained the inhumane treatment, due to an inappropriate restriction to meet the family and relatives; f. that the arrests, anchoring and investigation of the applicant as a suspect by investigators – nothing, other than the embodiment of revenge against a Claimant who has been distinctively exposing deeds not commendable of Police investigators and other law enforcement officials as well as members of the Community (the legal mafia) who team up to do evil programmatically, systematic and structured; 10. That factually there is a difference of interpretation between the protection of witnesses and Victims (LPSK) with Police Investigators, to the meaning contained in the sense of "witnesses who also suspects" as defined in article 10 paragraph (2) of LAW No. 13 of 2006 on the protection of witnesses and Victims; 11. That the existence of a difference of interpretation between the protection of witnesses and Victims (LPSK) with Police Investigators, about the appropriate place because it feels both have position and authority in question the applicant, then sepatut and the applicant's position should be returned in its original state as a free man, prior to his arrest and detention by Police Investigators; 12. That the politics of the legislation since the occurrence of a change of Constitution, in fact is a viable pay respects human rights, although there is still a significant waiver of certain rights by certain institutions as the holder of the authorization can interpret certain provisions. So the legislation is often-times can be interpreted with the people's interests and not harm favors the interests of respect for human rights; 13. That the protection of witnesses, so that in fact the rapporteur got legal protection and security over its report that he did not feel threatened or intimidated both rights as well as his soul. With the assurance of the security and protection of the law, it is expected that a State was created allowing the public no longer feel afraid to report a crime he knew was 26 persons legal apparatus itself, fearing his life was threatened or scared by certain parties, including the investigator; 14. The provisions of article 10 and paragraph (2) of LAW No. 13 of 2006 a quo is a potential dikualifikasi article violates the principle of respect and recognition of human rights, in this case the rights of witnesses and victims. With the formulation of the Article, then the article a quo disproportionate and excessive and by itself violates Section 28D subsection (1) of the Constitution, article 28G paragraph (1) of the Constitution, and article 28J paragraph (2) of the CONSTITUTION of 1945; 15. That to protect the rights of the applicant are not continuously violated and there gave birth to the uncertainty of the law, then the Commission's ruling in the case of the applicant in the test article 10 paragraph (2) of LAW No. 13 of 2006 against the Constitution is very urgent to prevent the occurrence of violations of the rights of the applicant if the legal norms applied while the inspection over the principal application is still running even though the applicant's constitutional rights were harmed can not be restored in the final award. In the case a quo verdict sidelines required to prevent possible loss of constitutional rights of the applicant if the suspect continues to be based on the decision and or use of authority officials not entitled or officials who had ended his term. V. provision of 1. Considering that Article 58 of the ACT of the Constitutional Court, which declared that the Court ruling was not retroactive, so to prevent the occurrence of violations of the constitutional rights of the applicant (by the way hold and examine the applicant as a suspect), the applicant, begged the Tribunal Judges the Constitution published a Ruling that ordered the police Interrupted the Republic of Indonesia to stop or delay the investigation and lawsuit alleged criminal acts involving the appellant as a suspect; 2. That the Court had decided the verdict of this provision in the case Number 133/PUU-VII/2009. According to the applicant, this needs to be done to prevent the occurrence of violations of the Constitution 27 has been continuously carried out by the police force of the Republic of Indonesia. Having regard to Article 63 of the ACT beep is the Constitutional Court that declared, "the Constitutional Court could issue a determination of who ordered on the applicant and/or the respondent to suspend implementation of the disputed authority until there is a ruling of the Constitutional Court"; It is perfect if the Court ordered a temporary halt to the actions of the Police Department for the menyidik, menahanan conducted by the police force of the Republic of Indonesia, because the matter is being examined by the Constitutional Court; 3. That the Applicant in the case factually it is going to dispute the authority of State institutions (SKLN) i.e. between witness protection and victims with the police force of the Republic of Indonesia, so is worth when the Constitutional Court ordered the temporary suspension of the execution of a legal action (in this case the detention and investigation) that is related to something that is being tested; 4. That this solicitation is actually the application for Testing legislation against the Constitution, but it cannot be denied that substantially and this application contain factually dispute the authority of State institutions, namely the Authority institutions of witness protection and Victim and police of the Republic of Indonesia; 5. That factually there is a difference of interpretation between the protection of witnesses and Victims (LPSK) with the Republic of Indonesia, Police Investigators against the meaning contained in the sense of "witnesses who also suspects" as defined in article 10 paragraph (2) of LAW No. 13 of 2006, on the protection of witnesses and victims. Even dispute this authority has been submitted formally by the victim and Witness Protection Agency (LPSK) to the President of the Republic of Indonesia for the settlement; 6. the application of this provision that the urge for granted, in an effort to end the kontraversi and debate the authority between national police investigators and Witnesses and victims protection agency (LPSK) which has involved the President of the Republic of Indonesia. In addition, the termination of the applicant's detention or investigation and it is important to show and


28 proved that the Protection of witnesses and victims (LPSK) is a credible institution and has the authority to provide protection against the witness who gave the description and recognition of the existence of corruption or on certain State institutions; 7. That the solicitation provision is essential to put forward by the applicant, that the applicant get a guarantee of legal certainty over the process that is being carried to the applicant, since the police force of the Republic of Indonesia continue to perform legal actions with a fixed based on the norm that is being tested, then the applicant's constitutional rights are continuously violated intentionally. With all of the arguments above, please respectfully in order to Judge the Constitution Tribunal is pleased to grant a petition for this provision. Vi. Petitum That from all the propositions outlined above and the evidence attached, with this Applicant please to the Tribunal Judges the Constitution Respected so that pleasing give verdict as follows:-Provision: 1. Receive application for provision of the applicant; 2. States are delaying the implementation of the enactment of Section 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims (LPSK) until there is a final Court verdict against the subject matter of the petition a quo; 3. Orders the Republic of Indonesia to the State police to stop the process of investigation over the matter of PT Arwana Salmah Sustainably with the police report No. Pol. LP/272/IV/2010/Bareskrim 21 April 2010 top suspect Susno Duadji and criminal acts of corruption in the management of the use of and accountability for the budget of a grant from the provincial Government of West Java in 2008 with the number of reports No. Pol s. Pgl./485/VI/2010/Pidkor & WORL Susno Duadji suspects over, at least until the existence of the ruling of the Constitutional Court in the case a quo, consisting of fixed laws;

29 4. Ordered to the Republic of Indonesia national police to free the Petitioner from Custody and handed over to the Applicant institution of witness protection and victims as witnesses are protected; 5. Told the South Jakarta State Prosecutor to discontinue proceedings or prosecution and ordered the South Jakarta District Court to stop the trial proceedings over the matter of PT Arwana Salmah Sustainably with the police report No. Pol: LP/272/Iv/2010/Bareskrim 21 April 2010 top suspect Susno Duadji and criminal acts of corruption in the management of the use of and accountability for the budget of a grant from the provincial government. West Java in 2008 with the number of reports no. Pol: s. Pgl./485/VI/2010/Pidkor & WORL Susno Duadji suspects over, Sha-whether to the existence of a ruling of the Constitutional Court in the case a quo, consisting of the law anyway. -In the subject matter of case: 1. Accept and grant the application for testing Act No. 13 of 2006 on the protection of witnesses and Victims against the Constitution of the Republic of Indonesia in 1945; 2. Declares article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and victims of the conflict with the Constitution of the Republic of Indonesia in 1945; 3. Declares article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims have no legal binding force with all its legal consequences; 4. Judges of the Constitutional Tribunal Or holds other and considers article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and victims, still have the force of law binding and enforceable, beg the Assembly Judges the Constitution constitutional interpretation can provide against article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and victims, the interpretation of which, with the understanding that a witness who also became a suspect in the same case cannot be 30 exempt from the criminal charges , must be meant that the position of the suspect set first before the witnesses testified in the matter; 5. Orders the loading of this ruling in the news of the Republic of Indonesia as it should be. Or if the Tribunal Judges the Constitution holds other, please seadil-fair Award (ex aequo et bono); [2.2] considering that to corroborate evidence if possible, the claimant has submitted evidence that writing letters/marked evidence of P-1 to P-14 Evidence, as follows: 1. Proof of P-1: photocopy of Act No. 13 of 2006 on the protection of witnesses and Victims; 2. Proof of P-2: a photocopy of the Constitution of the Republic of Indonesia in 1945; 3. Proof of P-3: Photocopying Card Sign Sign Card of residents and members of the national police of the applicant; 4. Proof of P-4: Electronic Mass Media Clipping Photocopies on March 18, 2010 and the date of April 12, 2010; 5. Proof of P-5: Photocopy an invitation the Commission III DPR Number SP. 01/2429/DPRRI/IV/2010 dated 7 April 2010 and Clippings printed and electronic mass Media; 6. Proof of P-6: Photocopy the petition for Protection of witnesses asked the applicant to LPSK 4 May 2010; 7. Proof of P-7: Photocopying the Treaty of Protection between the protection of witnesses and victims with Drs. Susno Duadji, S.H., M.H., Msc, PERJ-Number 007/i. LPSK/3/05/2010 may 26, 2010; Photocopying a letter of Protection of witnesses and victims Number S-308/i. LPSK/3/05/2010 may 26, 2010 Notification of acceptance of a matter of witness protection a. Susno Duadji Drs n, S.H., M.H., Msc; Photocopy of Letter from Drs Susno Duadji, S.H., M.H., Msc;


31 8. Evidence of the P-8: Photocopying Summons Number s. Pgl/234/IV/2010 Pidkor/WORL & 30 April 2010; Photocopying Summons Number s. Pgl/283/V/Pidkor/WORL & 2010 on May 7, 2010; 9. Proof of P-9: Photocopying Warrant Number SP. Kap/16/V/2010 dated 10 May 2010 (without seal); Photocopying Warrant Number SP. HAN/12/V/2010 dated 11 May 2010 (without seal); 10. Proof of P-10: Mass Media Clipping Photocopies of print and electronic (without seal); 11. Proof of P-11: Photocopying the proceedings Suspects News 10 June 2010; Photocopying Summons Number s. Pgl/485/VI/2010 Pidkor/WORL & date 11 June 2010 (without seal); 12. Proof of P-12: Original newspaper clippings Compass 2 June 2010 titled "Susno and witness protection"; 13. Proof of P-1: the original Compass newspaper clippings June 9, 2010 titled "LPSK wrote to the President to Secure Susno"; 2. Evidence of the P-14: Electronic Media Clippings Gatra.com June 10, 2010 entitled "KPK Dalami Agus Condro Role"; Electronic Media clippings okozone.com February 14, 2010 entitled "the Status of Anwar and he was Not Enhanced"; 15. Evidence of the P-15: Photocopy the written Affidavits LPSK Number S-715/1/LPSK/08/2010-30 August 2010; In addition, the applicant also filed two expert who has heard his statement under oath in the trial date of August 19, 2010, as follows: 1. Prof. Dr. Saldi Isra, S.H., MPA; 1. Article 10 paragraph (2) of ACT 13/2006 on the protection of witnesses and victims, contain a formula which could potentially give rise to the interpretation which may be detrimental to the witness and the victim giving rise to legal uncertainty at the end goes against the CONSTITUTION of 1945. 2. the Considerations weighing the LAW 13/2006 States: 32 ß of witnesses and/or victims who hear, see, or experience the onset of a criminal act in an effort to seek and find clarity about crime; ß law enforcement agencies often have difficulty presenting witnesses and/or victims due to the existence of a threat, either physical or psychological from certain parties; ß therefore needs to be done for the protection of witnesses and/or victims are very important existence in the criminal justice process. 3. The presence of article 10 paragraph (2) of ACT 13/2006 which stated that a witness who is also a suspect in the same case cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty, but his testimony could be used as the consideration of judges in the criminal will relieve dropped potentially damaging or thwart the intent of the initial formation of ACT 13/2008. 4. By taking a sample of cases experienced Susno Duadji, the use of article 10 paragraph (2) sends a clear message that the LAW 13/2006 are not capable of giving protection to the witnesses. In article 5 the letter a of ACT No. 10 of 2004 concerning the formation of the Regulations stated that the clarity of purpose is a fundamental Foundation of legislation. Later in the article 5 Explanation letter a is explicitly addressed: what is meant by "clarity of purpose" is that each establishment of the Legislation must have the clear objective to achieve. Article 10 paragraph (2) of ACT 13/2006 in sitemik are in chapter II on the protection of witnesses and victims. Supposedly, all existing norms intended to provide protection for witnesses and victims. However, the provisions of article 10 and paragraph (2) of ACT 13/2006 not just isn't in line with the intention that is in chapter II due to the presence of conditions that just don't provide protection against witnesses and victims. Are caused amazement, the presence of article 10 paragraph (2) of ACT 13/2006 thus can threaten the witnesses and victims. In addition, the presence of article 10 paragraph (2) of ACT 13/2006 can eliminate entitlement to a sense of security and protection from the threat of fear to 33 did or did not do something contains fundamental flaws still, because the grounds at the same time one can be defined as a witness and as a suspect, without any clear protection against position as witnesses. 5. Knowingly or not, conditions that negate rights that should be retrieved by witnesses and Victims as noted in article 5 paragraph (1) of ACT 13/2006. In addition, the phrase ".. ... cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty of ...." could potentially give rise to a double interpretation of (multi-interpretation) and ambiguous. Such formulation does not comply with section 5 with letter f of ACT 10/2004 which stated that regulations based on the principle of clarity of formulation. In the explanation of article 5 States: the letter f is the basis of "clarity of formulation" is that any legislation must meet the technical requirements of drafting legislation, systematics and the choice of words or terminology, as well as the language of the law is clear and easy to understand, so as not to give rise to a variety of interpretations in practice. 6. in the broader context, the provisions contained in article 10 paragraph (2) of ACT 13/2006 can be said to be contrary to Article 28D paragraph (1) of the Constitution which States: "everyone has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law". 7. In the context of the agenda for the eradication of corruption and the legal Mafia Eradication, the provisions contained in article 10 paragraph (2) of ACT 13/2006 not only undermine legal certainty but also potentially damaging to other legal purposes not less fundamentalnya, i.e. the principle of expediency. Simply put, these provisions may give rise to new fears for someone who expected to be willing to provide information related to a specific criminal offence.


34 8. Another reason which can be affirmed that article 10 paragraph (2) of ACT 13/2006 does not give benefits in the agenda for the eradication of corruption and the legal mafia eradication, namely: ß Provide a message to the public that the LAW 13/2006 does not provide guarantees for witnesses and victims; ß the more complicate getting a key witness in the settlement of cases of corruption and mafia law (especially the fashion scandal); ß Difficult dismantling the mafia and corrupt practices in environmental law enforcement agencies; and ß witnesses who provide information may be suspect. 9. in the view of the experts, the reason these benefits also makes many countries around the world provide protection to witnesses and victims. For example, countries such as the United States, South Africa, Canada, NSW Australia, and the UK did not give the status of a suspect to witnesses as provided for in article 10 paragraph (2) of ACT 13/2006. However, due to the adverse conditions of the witness and the victim will lose the desire to open up and dismantle major crimes including corruption. For reasons of legal certainty and the benefit of the above, the provisions of article 10 and paragraph (2) of ACT 13/2006 which States, a witness who is also a suspect in the same case cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty, but his testimony could be used as the consideration of judges in the criminal will relieve dropped was against the 1945 CONSTITUTION and shall be declared to have no force of law. 2. Dr. Eddy o. S Hiariej 1. That article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and victims, explicitly States, "a witness who is also a suspect in the same case cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty, but his testimony could be used as the consideration of judges in the criminal will relieve the dropped".

35 2. That article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims are in chapter II of the Act a quo on the protection and the rights of witnesses and victims. 3. That due to the absence of a clear formulation of the position of witnesses and suspects as well as in conditions of how one witness becomes a suspect when at the same time also the witness's status as the Rapporteur had led multi tafsir and potentially cause interpretation of the unconstitutional and raises uncertainty of the law and contrary to the constitutional rights as set forth in the Constitution. 4. That the next question is whether article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims in contradiction with article 28D paragraph (1) and section 28G subsection (1) of the Constitution? Based on these questions, experts will outline the manner of interpretation of Historical Interpretation, namely: 1. The interpretation of the meaning of the legislation according to the occurrence of road with researching the history of the occurrence of such legislation. Historical interpretation also includes the history of law i.e. the determination of the meaning of the formulation of a rule of law by searching on docking between writers or in General in the context of the community in the past. 2. Historically, the Whistle-blower itself is closely associated with the mafia-style crime organization as the oldest and largest crime organization in Italy who hails from Palermo, Sicily so often called the Sicilian Mafia or Cosa Nostra. 3. Organized Crime committed by a mafioso in the field of trade and heroin grown in different parts of the world that we know of similar organizations in different countries such as Russia, Cartel in Mafiya in Colombia, Chinese Triads and the Yakuza in Japan. So the strength of the crime network of organizations so that their people can master various sectors of power, whether it be the Executive, legislative, and judicial authority including law enforcement agencies.

36 4. Not infrequently a syndicate can be uncovered because one of them there is defected. That is, one of them serves as an atmospheric whistle or a whistle-blower to uncover the evil that they do. In return, the whistle-blower acquitted of criminal charges. Thus the provisions of article 10 and paragraph (2) of the Act a quo is contrary to the spirit of the whistle blower itself. Doctrinal interpretation 1. Strengthen the argument by referring to the specific doctrine which in this case is the doctrine of the Whistle Blower (Atmospheric Whistle). 2. There are three related whistle-blower who need attention. First, it must be as soon as possible the whistle-blower was given protection. This meant that he was not killed by the gang. Second, information from whistle-blowers can be used as proof of the beginning of the crime syndicate to uncover enough. Third, if the whistle-blower providing information so that it can dismantle crime syndicates right down to its roots, then it is used as an excuse for criminal charges. 3. The provisions of article 10 and paragraph (2) of the Act a quo does not meet the principles of protection against a whistle blower because the question remains will be subject to the criminal when involved in such crimes. That is, on the one hand the article give protection, but on the other hand whistle-blower did get the assurance to be exempt from criminal prosecution over the testimony. Thus article 10 paragraph (2) of Act No. 13 of 2006 did not give legal certainty to the whistle-blowers. Grammatical interpretation 1. The meaning of the provisions of the Act be interpreted in a way break it according to the General language everyday. 2. The provisions of article 10 and paragraph (2) of Act No. 13 of 2006 are ambiguous, does not meet the principle of the lex certa in criminal law and are likely to be contra legem by the provisions of article 10 paragraph (1). 3. If the grammatical, expounded in the confusion raises three. First, a witness who is also a suspect in the same case will


37 eliminate the rights of the defendant, whereas excusatie excusatie rights of the accused is one of the elements of judicial objectivity. On the one hand, when that person as a witness in court, his statement is valid as evidence if uttered under oath, but on the other hand when the corresponding status as defendant description given was not under oath. Second, the phrase ".. ... cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty of ...." ambiguous and raises the question, who will disidangkan first, whether the whistle-blower or perpetrators reported by whistle-blowers or will disidangkan simultaneously. Third, the provisions of article 10 and paragraph (2) are contra legem by the provisions of article 10 paragraph (1) which in fact States that witnesses, victims and reporters can not legally be prosecuted either criminal or civil charges over reports the testimony of the will, are being or have been given by him. Systematic interpretation/Logical 1. Interpreting the provisions of the legislation by connecting it with all the articles in the law, regulations, laws or other laws or with the overall legal system. 2. In the method of the invention law, especially criminal law, there are at least seven principles. Among these principles is the principle of titulus est lex and rubrica est lex. The first principle is called means legislation that determines the title while the second principle means a rubric or section perundang-undanganlah. 3. In casu a quo, article 10 paragraph (2) is located in rubrica est lex chapter II on the protection and the rights of witnesses and Victims, while the substance of the article does not guarantee protection against whistle-blower lawsuits mainly from criminal law. 4. Similarly in titulus est lex, the title of the legislation is pelrindungan witnesses and victims. So whatever the status of the witness must be given permanent protection. 5. The provisions of article 10 and paragraph (2) of the Act a quo regardless of the context of the protection itself. That provision thus does not guarantee legal certainty and the protection of human rights.

38 Comparative Interpretation 1. Interpretation by comparing these provisions in other countries, among others:-United Srerikat set in the Whistle-blower Act 1989. Whistle-blowers are protected from dismissal, demotion, suspension, threats, disturbances and acts of discrimination. -South Africa is governed by article 3 Protected Dsclosures Act number 26 in 2000. Whistle-blowers are given protection from occupational detriment or loss related to the position or job. -Canada is set out in Section 425.1 Criminal Code Of Canada. Whistle-blowers are protected from work that delivers punishment discipline, lowering ranks, fire or take any action that harms in terms of employment with the aim to prevent workers provide information to the Government or law enforcement agency or to respond to workers who provide information. -Australia is set out in article 20 and article 21 Protected Dsclosures Act 1994. Whistle-blowers, his identity kept secret, there is no accountability for criminal or civil basis, protection from claims of defamation, protection from acts of vengeance and conditional protection when the names were released to the media. -The United Kingdom is set out in article 1 and article 2 of the Public Interest Disclosure Act 1998. Whistle Blowers should not be fired and be protected from viktimisasi as well as the adverse treatment. Comparative interpretation usually see the legislation in various countries arising from international agreements. In the context of the case, Indonesia has ratified the United Nations Convention Against Corruption (UNCAC) and Act No. 7 of 2006. the provisions of article 10 and paragraph (2) of law No. 13 of 2006 was substantially contrary to Article 32 paragraph (1) of the UNCAC in ekplisit States, "each State party is obliged to take appropriate actions in accordance with its national legal system and in those powers to provide effective protection from potential retaliation or intimidation for witnesses and experts 39 who give testimony concerning the crimes defined in accordance this Convention and as appropriate, for their families and others close to them". Conclusion based on the above description as a whole, the provisions of article 10 and paragraph (2) of Act No. 13 of 2006 is contrary to the principle of recognition, guarantees, protection and legal certainty, protection of personal self, family, honor, dignity, and protection from the threat of fear to do or not do something which is a human right as intended by article 28D paragraph (1) and section 28G subsection (1) of the Constitution. [2.3] considering that the petition against the applicant, the Government provides information in the trial date of August 19, 2010, which outlines the following: i. APPLICATION for trees 1. That is the reason the applicant to apply for the test article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims against the Constitution, which in principle is as follows: a. That the provisions of article 10 and paragraph (2) of Act No. 13 of 2006 has opened up opportunities for the Ombudsman to intervene against the authority of the LPSK without control of the judicial branch of power , because of the determination of a witness becomes a suspect and then do the detention can be done unilaterally by the investigator without considering the presence of authorities of the other State institutions. b. absence of clear and unequivocal formulation against the position of "witness" and "the usual suspects" as well as in conditions of how someone can be "suspect" when at the same time also the status as a "complainant" witnesses so it can cause multi tafsir and potentially raises the interpretation which is unconstitutional, and therefore then the provisions of article 10 and paragraph (2) of Act No. 13 of 2006 is contrary to constitutional rights as set forth in the Constitution.


40 c. That result from multi interpretation of provisions against article 10 paragraph (2) of Act No. 13 of 2006, then there has been a difference of interpretation between the protection of witnesses and Victims (LPSK) and national police Investigators against the meaning contained in the sense of "a witness who is also a suspect" and due to differences of interpretation, the applicant had harmed the rights of konstitusionalnya, because the applicant was initially examined as a witness then set as Suspect and performed the action of arrest and detention as a result, then the protection to the applicant in its capacity as a witness cannot be done LPSK. d. in short according to the applicant, if the provisions of a quo interpreted incorrectly used with potential then dikualifikasi has violated the principle of respect and recognition of human rights, especially the rights of witnesses and victims. In addition the provisions of a quo is also potentially inhibit the equation of the position before the law and Government and can give rise to legal uncertainty, because according to the Applicant the terms a quo was deemed contrary to article 27 paragraph (1) of article 28D, paragraph (1) of article 28G, paragraph (1), and article 28J paragraph (2) of the Constitution. 2. next the applicant in their petition requested the Constitutional Court gave the verdict: in this Provision: 1) told state police of the Republic of Indonesia to stop the process of investigation over the matter of PT Arwana Salmah Sustainably with the police report Number Pol. LP/272/IV/2010/Bareskrim 21 April 2010 top suspect Susno Duadji and criminal acts of corruption in the management of the use of and accountability for the budget of a grant from the provincial Government of West Java in 2008 with the number of reports No. Pol s. PgI./485NI/2010/Pidkor & WORL Susno Duadji suspects over. 2) told state police of the Republic of Indonesia to free the Petitioner from custody and handed over to the Applicant institution of witness protection and victims as witnesses are protected.

41 in the subject matter of case: 1) accept and grant the application for Testing Act No. 13 of 2006 on the protection of witnesses and Victims against the Constitution of the Republic of Indonesia in 1945; 2) States article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and victims of the conflict with the Constitution of the Republic of Indonesia in 1945; 3) States article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims have no legal binding force with all its legal consequences; 4) or if the Tribunal Judges the Constitution holds another beg the Assembly judges the Constitution can provide a constitutional tafslran against article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and victims. II. The POSITION of the LAW (LEGAL STANDING) with regard to the legal position of the APPLICANT (legal standing) of the applicant, the Government through the noble Assembly Chairman/the Constitutional Court may invoke the Petitioner can prove first whether the applicant as a party which considers the right and/or authority konstitusionalnya harmed over the enactment of provisions which appealed to those tested, as well as whether there is a constitutional disadvantage Applicants in question are specific (Special) and actual or potential nature at least according to the reasoning reasonably certain will happen , and whether there is a causal relationship (causal verband) between the losses experienced by the applicant with the enactment of laws that appealed to be tested. Further, in order for a person or a party may be accepted as an applicant who has the position of law (legal standing) in the application for Testing legislation against the Constitution of the Republic of Indonesia in 1945, then the first must explain and prove: a. Credentials in the petition for a quo as referred to in article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court;

42 b. Right and/or authority konstitusionalnya in the qualification which is considered to have been harmed by the enactment of the legislation being tested; c. Loss of rights and/or constitutional authority the applicant as a result of the enactment of laws that petitioned testing. If paying attention to the things mentioned above, then the claimant in this appeal have qualified or act as individual citizens of Indonesia, which considers the right and/or authority konstitusionalnya has been harmed over the enactment of legislation a presumption of such damages or quo as a result of the enactment of laws that appealed the test. Then the question is the presumption of the existence of such Applicant whether constitutional losses caused by the introduction of and/or resulting from the enactment of the provisions of article 10 and paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and victims, or due to the determination of the applicant as a suspect, then conducted the detention by Police of the Republic of Indonesia Investigators over matters disangkakan corruption criminal act to the applicant (vide number police report No. POI. LP/272/IV/2010/Bareskrim and no. Pol s. Pgl/485NI/2010/Pidkor & WORL). Therefore, the Government through the noble Assembly Chairman/the Constitutional Court may invoke the Petitioner can prove first whether the applicant as a party which considers the right danlatau konstitusionalnya authority aggrieved over the enactment of provisions which the petitioned to be tested, especially in the presence of the constitutional presumption reconstruct the loss meant that, according to the Government of what was experienced by the claimant, which in this case acted as Rapporteur (witnesses) who reported the existence of the alleged criminal acts of crime (corruption) in one institution (the Police Department) , is a form of public participation to engage combat mafia law that occur in Indonesia or as an embodiment of the public participation in law and Government. According to the Government, so that it is accurate and it has been properly if any person (including the applicant) disagree made a suspect, then conducted the detention by Investigators (police) on the alleged crime has been doing (corruption) to do the resistance/pre law efforts


43 the judiciary to State Court, as already done oteh, who until the applicant filed the application for this test, the applicant had committed the judicial remedy of the pre 2 (two) times to the South Jakarta District Court. Based on the description above, according to the Government's problems occurred against the applicant are not associated with the issue of enforceability of the charge material konstitusionatitas norm that appealed to those tested, because it is right if the Chairman of the Constitutional Court Judges Assembly/wisely declare the petition of the applicant cannot be accepted (niet ontvankelijk verklaard). Nevertheless, the Government handed over entirely to the noble KetualMajelis of the constitutional Judges to consider and assess whether the applicant has the legal position (legal standing) or not, as specified by article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court as well as based on the rulings of the Constitutional Court earlier (vide Verdict Number 0061PUU -111/2005 and decision number 11/PUU-V/2007). III. CONSTITUTIONAL COURT of AUTHORITY 1. In their petition, the applicant requested that the Constitutional Court gives verdict in the provision, among others, told state police of the Republic of Indonesia to stop the process of investigation over the matter of PT Arwana Salmah Sustainably with the police report No. Pol LP/272/IV/2010/Bareskrim 21 April 2010 top suspect Susno Duadji and criminal acts of corruption in the management of the use of budgetary and accountability grants from Pemprop in West Java in 2008 with the number of reports No. Pol. S. PgI./485NI/2010/Pidkor & WORL Susno Duadji suspects over. 2. With respect to the applicant's plea that the Government contends that the authority for the termination of the investigation of a criminal matter is not the authority of the Constitutional Court, because the authority of the Constitutional Court is set up expressly in article 10 paragraph (1) letter a up to d Act No. 24 of 2003 about the Constitutional Court 44 which reads: "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final for :-Testing legislation against the Constitution of 1945. -Disconnect the disputes that its State agencies the authority granted by the Constitution of 1945. -Disconnect the dissolution of political parties, and-Disconnect disputes about election results "; While the reasons for termination of investigation criminal cases can only be done by Investigators with the reason: there was not enough evidence, the temyata event does not constitute a criminal offence or investigation was discontinued in favor of the law, as provided for in article 109 paragraph (2) of Act No. 8 of 1981 on the law of criminal procedure. Based on the reasons as set forth above, then the Government requested his Excellency the Chairman of the Constitutional Court Judges Assembly/refused the applicant's application or at least declared unacceptable (niet ontvankelijk verklaard). IV. Description of the GOVERNMENT before the Government provide an explanation over the application of the provisions of article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and victims, the following is submitted original intent of laws a quo, as follows: a. that the results of research conducted sebetum compose Texts academic and draft legislation on the protection of witnesses and victims, in summary, as follows: 1. The various provisions contained in the book of the law of criminal procedure (CODE of CRIMINAL PROCEDURE) Iebih many give legal protection to suspects/defendants than to witness/victim; 2. Witnesses have testified that if the obligation is not performed then may give rise to criminal sanctions, as formulated in article 534 of the PENAL CODE and article 227, however there are no rights of witnesses who specifically formulated; 3. In the practice of temyata many witnesses thus prosecuted in criminal by the perpetrator of the criminal offence by indictment doing 45 defamation ", as witness the correct information to law enforcement agencies; 4. The role of victims in the judicial process Iebih is seen as a means to prove the fault of the defendant, but the appreciation and protection of the victim is not diperoteh, also for the recovery of completely unregulated, except as set forth in the CODE of CRIMINAL PROCEDURE Article 98 open space prosecution damages which were merged in the process of examination of the criminal act. b. that the provisions set forth in Act No. 13 of 2006 on the protection of witnesses and Victims, aiming to provide protection to victims and witnesses that had not gained attention and adequate protection from the State. Witness as set forth in the Statute a quo categorized in some groups, namely: witnesses who were not involved in a criminal offence; witnesses involved as victims of crime, and witnesses involved in criminal acts in the context of inclusion (deelneming). Then the witnesses must also be distinguished from forms of criminal acts in which the witness gave a description, so that the granting of protection, such as security protection only afforded to witnesses in criminal cases are very serious, and not to all the people who become witnesses in criminal cases. Likewise for victims of criminal acts, where the right to prosecute, such as restitution is given to victims of criminal acts against human rights violations. c. That the existence of whistle-blower (slit drum beater) realized the role panting by the framers of the draft law on the protection of witnesses and victims, but more detailed arrangements relating to the witness as a whistle-blower has the elements that differ quite significantly in comparison with the witness in other categories. As it known that whistle-blowers act which is found in various countries in North America, Europe and Australia was originally more aimed for mal-administration actions reported by the insider to his superiors or to the appropriate authorities. The protection to be given because in general people who


46 reported are those who want to uphold the truth at the institution where the work in question, on the other hand the possibility of being reported as superior. The intricacies of the position of the wistle blower (slit drum beater) that caused the framers of the legislation a quo decides not to incorporate the provisions of the wistle blower in Act No. 13 of 2006 on the protection of witnesses and victims. The petition against the provisions of article provisions of article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims, the Government can be explained as follows: 1. Act No. 13 of 2006 on the protection of witnesses and Victims made was to provide protection to witnesses and/or victims in criminal cases. In article 4 of Act No. 13 of 2006 mentioned that the protection of witnesses and victims aims to provide a sense of security to witnesses and/or victims in giving information on any criminal justice process. The specified protection aims to provide a sense of security to witnesses and/or victims so as not to get scared by the presence of either physical or psychological threats from certain parties. 2. in the General provisions of the Act No. 13 of 2006 on the protection of witnesses and Victims explained that the definition of "witness" is a person who can provide information to the interests of the investigation, investigation, prosecution and examination in the court hearing of a criminal matter that he heard himself, he Iihat himself and/or he experienced (article 1 point I), whereas the definition of "victim" is someone who experienced physical suffering , mental and/or economic loss caused by a criminal act (article 1 point 2). 3. in a general explanation of Act No. 13 of 2006 stated, "in order to cultivate public participation to unravel the crime, need to be created a conducive climate by means of providing legal protection and security to any person who knows or finds a thing that may help unravel the 47 criminal act has occurred and report on ha! the law enforcement "; 4. next article 10 paragraph (1) of Act No. 13 of 2006 mentions, "a witness, victim, and reporters could not be legally prosecuted, whether unaccompanied for criminal or civil litigation over the report, the testimony of the will, is being, or has he bestowed", and according to the explanation of article 10 paragraph (1) of Act No. 13 of 2006 that the definition of "Complainant" is a person who provides information to law enforcement agencies about the occurrence of a crime. The provisions set forth in article 10 paragraph (1) of Act No. 13 of 2006 is an affirmation that witnesses, victims and reporters who can't be prosecuted by law, whether unaccompanied for criminal or civil litigation over the testimony or reports they provide, are witnesses, victims and/or reporters who give testimony or reports to a "law enforcement", not to any other person or other institutions that do not qualify as law enforcement. Then it should be also understood that the provisions of article 10 paragraph (1) of Act No. 13 of 2006 that apply only to witnesses and reporters who are not status as a suspect in the case. Whereas against witnesses who also as a suspect in the same case, provided for in the provisions of article 10 and paragraph (2) of Act No. 13 of 2006. Thus it is clear that the applicant was not included as a witness/complainant is protected according to the provisions of article 10 paragraph (1) of Act No. 13 of 2006 on the protection of witnesses and victims. 5. According to the provisions of article 10 and paragraph (2) of Act No. 13 of 2006 that a witness who is also a suspect in the same case cannot be exempt from criminal prosecution when he temyata proven legally and convincingly guilty, but his testimony could be used as the consideration of judges in the criminal will relieve dropped. The provisions of article 10 and paragraph (2) has the meaning or is an affirmation that the protected witness is merely a witness who is not at all involved as Perpetrators in the crime. The provisions of article 10 and paragraph (2) of Act No. 13 of 2006 have meaning and 48 is an affirmation that the witnesses are protected by the protection of witnesses and Victims (LPSK) is merely a witness who is not involved as Perpetrators in the crime. 6. Thus that the provisions of article 10 and paragraph (2) of Act No. 13 of 2006 has been very easy to understand, so it is no longer the memeriukan interpretation. And therefore then the statement or opinion of the applicant in his petition that there has been a difference of interpretation between the investigating police of RI with LPSK against the provisions of article 10 and paragraph (2) of Act No. 13 of 2006 is an opinion that does not contain the truth. 7. then when the formulation of article 10 paragraph (2) of Act No. 13 of 2006 is understood correctly, then it can be known clearly that the provisions set forth in article 10 paragraph (2) of Act No. 13 of 2006 have implemented the basic principles of the right of every citizen of Indonesia before the law as set forth in article 27 paragraph (1) of article 28D, paragraph (1) of article 28G, paragraph (1) and article 28J, paragraph (2) of the Constitution which States: article 27 paragraph (1) of the Constitution: "all citizens simultaneously its position in law and Government and obliged to uphold the law and rule it with no kecualinya"; Article 28D paragraph (1) of the Constitution: "everyone has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law"; Article 28G paragraph (1) of the Constitution: "everyone has the right to protection of personal self, family, honor, dignity, and property under his control, as well as the right to security and protection from the threat of fear to do or not do something which is a human right"; Article 28J paragraph (2) of the Constitution: "in the exercise of rights and freedom, everyone is subject to the mandatory limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the demands of a fair


49 in accordance with considerations of a moral, religious values, security and public order in a democratic society "; 8. the Constitution Further explain firmly that Indonesia is a country of law (rechtstaat) and not based upon mere power (machtstaat). This means that the State of the Republic of Indonesia is a country of law that upholds human rights, guaranteeing all citizens simultaneously its position in law and Government as well as the obligatory uphold the law with no kecualinya. The law acts as a regulator in the life and bemegara. The law sets out what can be done and what is forbidden to do. As State law legal certainty should be enforced. 9. Therefore the withholding/limitation of freedom of movement experienced by the applicant at this time as a result of doing over the detention of the applicant is the implementation of the principles of the equations in the presence of the law (equality before the law), that is a principle that is very appreciative of the human equation in the presence of the law. Before the law of all people are the same, in the sense that anyone who commits a crime then perpetrators of such criminal acts must be treated equally before the law (equality before the law). Thus it is clear that the provisions of article 10 and paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims are not contrary to the Constitution of the Republic of Indonesia in 1945. V. conclusions based on explanation as set forth above, can be summed up as follows: 1. The applicant has no legal kedudian (legal standing) to apply for a quo. 2. the termination of the investigation of things criminal acts on behalf of the applicant not contained within the authority of the Constitutional Court. 3. Not true there is a difference of interpretation between the protection of witnesses and victims with Police Investigators against the provisions of article 10 paragraph 50 (2) Act No. 13 of 2006 on the protection of witnesses and victims. 4. That the provisions of article 10 and paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims are not contrary to the Constitution of the Republic of Indonesia in 1945. The Government subsequently appealed to the Chairman of the Constitutional Court Judges Assembly/to be able to give the verdict as follows: in the provision: 1. Refuse the petition Provision the applicant to entirely; 2. States that the Constitutional Court is not authorized to order the termination of the criminal proceedings that are being faced by the applicant. In the subject matter of case: 1. Declare that the applicant has no legal position (legal standing); 2. Rejects the Application of the applicant for entirely or at least test the applicant's appeal is unacceptable (niet ontvankelijk verklaard); 3. Accept the Description of the Government as a whole; 4. Declaring the provisions of article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims are not contrary to the provisions of article 27 paragraph (1) of article 28D, paragraph (1) of article 28G, paragraph (1), and article 28J paragraph (2) of the Constitution of the Republic of Indonesia in 1945; But when his Majesty the presiding judge of the Constitutional Court holds other, please wise ruling and seadil-fair (ex aequo et bono). [2.4] considering that the petition against the applicant, the Representatives of the Council provides information on 19 August 2010, which outlines the following: a. the PROVISION OF ARTICLE 51 of the Act No. 13 of 2006 on the PROTECTION of WITNESSES and VICTIMS who APPEALED the TEST AGAINST the CONSTITUTION of the REPUBLIC of INDONESIA in 1945. The applicant in the application for a quo apply for testing upon article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and victims, which reads: "a Witness who is also a suspect in the same case cannot be exempt from criminal prosecution if it is legally proven yata tern and convinced of guilt, but his testimony could be used as the consideration of judges in the criminal will relieve the dropped"; The provisions of article 10 and paragraph (2) of the Act a quo, according to the applicant, potentially harming the rights konstitusionalnya and deemed contrary to Article 28D paragraph (1) and section 28G subsection (1) of the Constitution. B. RIGHTS and/or CONSTITUTIONAL AUTHORITY is CONSIDERED an APPLICANT AGGRIEVED by the ENACTMENT of Act No. 13 of 2006 on the PROTECTION of WITNESSES and victims. The applicant in the application for a quo, argued that the right konstitusionalnya have been harmed and violated by the enactment of Section 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims (hereinafter abbreviated as ACT number 13 year 2006) against the Constitution, i.e. substantially as follows: 1. That plea in a quo put forth containment actions carried out by the Police against Bareskrim Applicant based upon the description of the Kadiv Police Headquarters public relations in some mass media both print and electronic are essentially saying the action containment against the applicant also based upon the existence of the provisions of article 10 and paragraph (2) of LAW No. 13 of 2006. (vide Solicitation number 9 p. 6). 2. That according to Applicants after undergoing detention is also subject to the status of a suspect in the crime of corruption in the management of the use of and accountability for the budget of a grant from the provincial Government of West Java in 2008 by Police in West Java and the range, based on


Police report No. 52. Pol. LP/261/IV/2010/BARESKRIM dated 12 April 2010 as stated in the applicant's BAP as a suspect June 10, 2010. (vide Solicitation number 10 p. 6). 3. That the applicant in the application for a quo argued that the position of the applicant who previously was a witness and the rapporteur has asked for legal protection as a witness to the rapporteur in witness protection and Victim but suddenly have been made suspects and instantly have performed the Act of detention, is a violation of the rights of the konstitusionalnya and the applicant has been aggrieved by the interpretation of the provisions of article 10 and paragraph (2) of LAW No. 13 of 2006 by the police. (vide Application numbers 11 p. 7). 4. That the applicant assumed as a result of the existence of the arrest, detention and investigation as a suspect, the Appellant suffered a loss, namely: constitutional (vide the petition number 12 p. 7). First, the applicant has lost the right to participate in law and Government, as guaranteed by article 27 paragraph (1) of the Constitution. The right to participate in the law and the Government was lost because the applicant had been detained by Investigators for reasons other than as a witness, Appellant has also been designated as a suspect. Second, the applicant has lost the right to the recognition, guarantees, protection and legal certainty are fair, as guaranteed by article 28D paragraph (1) of the Constitution. Third, the applicant has lost the rights to the sense of security and protection from the threat of fear to do, as guaranteed by article 28G paragraph (1) of the Constitution according to the applicant the provisions of article 10 paragraph (2) of LAW No. 13 of 2006 is contrary to Article 28D paragraph (1) and section 28G subsection (1) of the Constitution, which States: article 28D paragraph (1) of the Constitution: "everyone has the right to recognition , guarantee, protection and legal certainty of fair and equal treatment before the law ".

53 Section 28G subsection (1) of the Constitution: "everyone has the right to protection of personal self, family, lehormatan, dignity, and property under his control, as well as the right to security and protection from the threat of fear to do or not do something which is a human right". C. DESCRIPTION of the HOUSE of REPRESENTATIVES Against dalii-evidence of the applicant as set forth in the petition for a quo, with this PARLIAMENT in delivering his views in advance outlining the legal position concerning (legal standing) can be explained as follows: 1. The position of the law (Legal Standing) Applicant qualifications that must be met by the applicant as a Party have been arranged in the provisions of article 51 paragraph (1) of LAW Number 24 year 2003 about Mahkarnah the Constitution (hereinafter abbreviated as the ACT of the Constitutional Court) , which States that "the applicant is a party which considers the right and/or authority konstitusionalnya harmed by the enactment of the Act, namely: a. the individual citizen of Indonesia; b. the unity of Community law all still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation; c. a public or private legal entities; or d. the institutions of State. " Rights and/or constitutional authority in question the provisions of article 51 paragraph (1), reaffirmed in the explanation, that "the definition of" constitutional rights "are the rights set forth in the Constitution of the Republic of Indonesia in 1945." Provision of an explanation of article 51 paragraph (1) confirms this, that only hakhak explicitly regulated in the Constitution only includes "constitutional rights". Therefore, according to the ACT on the Constitutional Court, in order that a person or a party may be accepted as an applicant who has the legal standing of the 54 (legal standing) in the application for Testing legislation against the Constitution, then the first must explain and prove: a. Credentials as the applicant in the application for a quo as stipulated in article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court; b. rights and/or authority referred to in konstitusionalnya "explanation of article 51 paragraph (1)" is considered to have been harmed by the enactment of laws; Regarding the constitutional parameters of loss, the Constitutional Court has given understanding and limitation of losses arising from the constitutional enactment of a law must meet the five terms (vide the verdict Matter Number 006/PUU-111/2005 and Number 011/PUU-V/2007) is as follows: a. the existence of rights and/or constitutional authority the applicant granted by the Constitution; b. that rights and/or constitutional authority the Applicant is deemed by the applicant have been wronged by an act that was tested; c. that the loss and/or constitutional authority the applicant in question are specific (Special) and actual or potential nature at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship (causal verband) between the losses and the enactment of legislation which petitioned testing; e. of the possibility that by dikabulkannya the petition then loss and/or. the constitutional authority of the postulated relationship will not or no longer occur. In the fifth such terms are not met by the applicant in the case of testing the law with quo, then the applicant has no legal position qualification (legal standing) as a party to the applicant. Responding to the plea of the petitioner a quo, the HOUSE of REPRESENTATIVES holds that the applicant must be able to prove first whether the applicant as a party which considers the rights and/or authority


55 konstitusionalnya aggrieved over the enactment of provisions that petitioned to be tested, especially in the presence of reconstruct the loss against the right and/or authority to konstitusionalnya as the impact of the passage of provisions that petitioned to be tested. Against the position of the law (legal standing), the HOUSE of REPRESENTATIVES handed over entirely to the Chairman/the Constitutional Court Judges Assembly mulya to consider and assess whether the applicant has the legal position (legal standing) or not, as regulated by article 51 paragraph (1) of the law on the Constitutional Court and on the basis of the ruling of the Constitutional Court Docket Number 006/PUU-111/2005 and Number 011/PUU-V/2007. 2. Testing of Material in the law No. 13 of 2006 on the protection of witnesses and Victims (hereinafter referred to as ACT number 13 year 2006) against the views of the applicant as set forth in the petition for a quo, the HOUSE conveys information as follows: 1. That in order to understand the "spirit" of the provision or norm contained in article 10 of the Act a quo, need to pay attention to the background of the formulation of the article. The meaning of terkadung in the provisions of article 10 and paragraph (2) of the Act a quo is important to understand. The basic consideration of the formulation of the provisions of article 10 of the Act a quo associated with witness protection which is then set to be the suspect not understood subjectively, but his approach should be from the perspective of an objective look at the deed. The debate on the formulation of the provisions of article 10 paragraph (2) it can be researched/read in a Discussion meeting of the Treatise Bill on witness protection and Victim i.e. Working Committee meeting, Wednesday, May 24, 2006 may be submitted as berikkut: "DIM Number 53, namely article 10: a witness including as suspects he's a witness, too, but also the same suspects cannot be exempt from criminal prosecution when he proved legally and download assure guilty However, his testimony could be made consideration of judges in the criminal will relieve dropped. It removes the proposal Pernerintab above. about cannot be prosecuted in criminal and civil liability of it. Agree 56 huh? If this does indeed need a Pack? Because he is a witness and, if the offender so watch mourn. A witness, so the suspect also, KPK when we took from the Prosecutor's Office or the Police Department, the ends so again. But whatever story we agree the basic idea is self-sufficiency, only its implementation remained under police which until now has the tools to protect the witnesses. It I think. Thank you. " (vide book I the process of discussion of the BILL on the protection of witnesses and Victims, the Secretariat General of DPR RI, Jakarta, p. 515). 2. observing That the background of the formulation of the provisions of article 10 of the BILL on the protection of witnesses and Victims as outlined, specifically a witness may also be as a suspect, so because of the deeds of a Witness's status even though of course it cannot be exempt from criminal prosecution if the corresponding proven legally and convincingly guilty. However the testimony of a witness who became the suspect can be made into consideration judges to relieve the criminal will be brought down to him. On that basis, the HOUSE argues that indeed the provision of article 10 paragraph (2) of the Act a quo, associated with the provision of article 10 paragraph (1) of the Act a quo contain legal norms that are clearly and definitely to give legal protection to witnesses, victims and the Rapporteur, namely that it's basically a witness, victim, and provided legal protection for Reporters cannot be legally prosecuted criminal as well as civil liability statements , testimony that would be, are being, or have been given. However, this provision should be meant that witnesses, victims, and the Rapporteur not snagged by the criminal act and the civil code are reported. Therefore, the provisions of article 10 and paragraph (2) of the Act a quo of course does not apply to witnesses, victims, or the Rapporteur when not involved with criminal deeds is being done the investigation or investigation. 3. That the applicant in the application for a quo did not elaborate in concrete juridical reasons regarding its conflict of norms of article 10 paragraph (2) of Act 57 a quo with the provision of article 28D paragraph (1) and section 28G subsection (1) of the Constitution. The applicant is also not able to decipher the actual incidence of loss regarding constitutional significantly experienced by the applicant as a result of the enactment of the provisions of article 10 and paragraph (2) of the Act a quo. Seandainyapun the applicant now suffered losses because its status is set as Suspect as postulated the applicant, according to the HOUSE it is absolutely no relevance or not due to the provisions/norms contained in article 10 paragraph (2) of the Act a quo. Therefore the PARLIAMENT argued that the provisions of article 10 and paragraph (2) of the Act a quo strictly legally correct, clear, and certainly that a witness who is also a status of a suspect in the same case cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty, but his testimony could be used as the consideration of judges in the criminal will relieve dropped. It applies to any person who became a witness and also at once status as Suspects Means an Saski which are not be Suspect under the law certainly will have different legal protection with a witness who is suspect. 4. That the House looked at the provisions of article 10 and paragraph (2) of the Act a quo is not at all obstruct and reduce the constitutional rights of the applicant to obtain recognition, guarantees, protection and legal certainty of fair and equal treatment before the law, as well as rights protections over personal self, family, honor, dignity, and harts objects under his reign, as well as the right to security and protection from the threat of fear to do or not do something which is a human right as guaranteed in article 28D subsection (1) and section 28G subsection (1) of the Constitution. That the applicant, whether unaccompanied as witnesses or Suspects still acquire legal protection in accordance with the provisions in the CODE of CRIMINAL PROCEDURE and the PENAL CODE. Therefore, the provisions of article 10 and paragraph (2) of the Act a quo already


58 accordingly and in line with the provisions of the mernberikan protection of human rights that are guaranteed by article 28D paragraph (1) and section 28G subsection (1) of the Constitution. Of course the above provisions do not apply to the applicant, although that question as a witness manakali is proven legally and convincingly strong allegedly involved in a criminal deed. Thus the loss of constitutional rights which postulated an applicant no real relevance to the constitutional rights of every person are guaranteed by article 28D paragraph (1) and section 28G subsection (1) of the Constitution. 5. the Applicant puts forward the proposition That the provision of article 10 paragraph (2) of the Act a quo konstritusional incompatible with the applicant that is guaranteed in the Constitution are unwarranted and not based on law, because there is no constitutional foundation and the juridical system in the criminal law in force which govern that a witness to the Rapporteur (whistle blower) can not be arrested or processed in a criminal even though concerned involved in Criminal deeds even already be suspect. If the witness relied upon subjective logic not to process a person, whereas the Witnesses in question legally and convincingly proven to be involved in Criminal deeds who conducted the investigation, then it will undermine the system pemidanaan, because someone will most likely appear as a witness to the criminal events of a Rapporteur, but concerned himself truly involved in the criminal event itself. 6. That the existence of a difference of interpretation between the protection of witnesses and Victims (LPSK) with Police Investigators, to the meaning contained in the sense of "witnesses who also Suspects" as defined in article 10 paragraph (2) of the Act a quo postulated Applicant (vide the petition number 26 p. 16), according to the HOUSE such a thing is not an issue of constitutionality, but rather solely related to the difference in understanding or interpretation of provisions of a law that allows the application of the law against implicates. But keep our 59 pass that norm contained in article 10 paragraph (2) of the Act a quo was clear Explanation as described in article 10 paragraph (2) of the Act a quo, meaning that no other interpretation, in addition to the interpretation explicitly stated expressly in the provisions of article 10 and paragraph (2) of the Act a quo. 7. That the applicant's self against detention carried out by the national police is based on the authority of the national police provided by ACT No. 2 of 2002 on State police of the Republic of Indonesia and the CODE of CRIMINAL PROCEDURE. In article 14 paragraph (1) g of ACT No. 2 of 2002 on State police of the Republic of Indonesia in charge of "conduct of investigation and proceedings against any criminal offence according to the law of criminal procedure and other laws-invitation" explanation of article 14 paragraph (1) Letter g this lawmaking explains, "the provisions of the Law of criminal procedure ACT gives the leading role to the State police of the Republic of Indonesia in the investigation and investigation so that in General was given authority to conduct an enquiry and investigation of all criminal acts". That the next article 16 paragraph (1) letter a of ACT No. 2 of 2002 that set, "in order to organise the tasks referred to in Article 13 and article 14 in the field of criminal proceedings, the State police of the Republic of Indonesia authorities to conduct searches, detentions, pengangkapan, and penyiaan". But the authority given to the Police legislation is certainly not without basic consideration. The reason is certainly the alleged existence of a criminal offence committed by a person (including the applicant) who already have strong evidence. That based on the descriptions, the descriptions of the HOUSE looked at the provisions of article 10 and paragraph (2) of LAW No. 13 of 2006 on the protection of witnesses and Victims are not contrary to Article 28D paragraph (1) and section 28G subsection (1) of the Constitution. Against the position of the law (legal standing), the HOUSE of REPRESENTATIVES handed over entirely to the Chairman/the Constitutional Court Judges Assembly mulya to consider and assess whether the applicant has the position of 60 law (legal standing) or not, as regulated by article 51 paragraph (1) of the law on the Constitutional Court and on the basis of the ruling of the Constitutional Court Docket Number 006/PUU-111/2005 and Number 011/PUU-V/2007. Thus the HOUSE begging God be the judge of the Tribunal Chairman/Constitution gives verdict amar mulya as follows: 1. the appeal a quo refused to entirely or Sha-whether or not appeal a quo is unacceptable; 2. Declare the HOUSE accepted Description for entirely; 3. Declaring the provisions of article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims are not contrary to Article 28D paragraph (1) and section 28G subsection (1) of the Constitution of the Republic of Indonesia in 1945; 4. Declaring the provisions of article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims still have the force of law. [2.5] considering that the Court has received the written keteranga of the Protection of witnesses and Victims on September 1, 2010, which outlines as follows: 1. ACT No. 13 of 2006 on the protection of witnesses and victims, had given the assurance and the specific legal protection to witnesses, and victims. Legal protection of witnesses, victims and the rapporteur is intended to provide a sense of security for witnesses, victims and reporters who are implemented in accordance with the provisions of the legislation. All witnesses, victims, and the rapporteur requires legal protection. Legal protection to witnesses, reporters, and the victim is given by the State to address the possibility of threat and revenge through the efforts of the law that might be received. Remedy or the use of this legal instrument can be done either through the efforts of criminal or civil liability. For example through a lawsuit or reporting witness to investigators-investigators over criminal deeds that can be diancamkan to a witness or complainant (criminalization).


61 2. In ACT No. 13 of 2006 on the protection of witnesses and victims, as well as a covered protection addressed to the rapporteur i.e. people who reported the crime or crimes to law enforcement officials. Despite the protection afforded is far from covering the rapporteur in the context of the protection of whistle-blowers who have much practiced in several countries. But as a starting point, the regulation still memandatkan LPSK to protect its reporters. 3. The provisions of this law concerning the protection provided for in article 10 of LAW No. 13 of 2006 stated that: (1) a witness, victim, and Reporters could not be legally prosecuted criminal as well as civil litigation over the reports, testimony that would be, are being, or have been given by him. (2) a witness who is also a suspect in the same case cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty, but his testimony could be used as the consideration of judges in the criminal will relieve dropped. (3) the provisions referred to in subsection (1) does not apply to witnesses, victims, and the Rapporteur provides information not in good faith. 4. On the basis of this article then the legislation provides legal protection over two things: (1) against a witness, victim, and because the Rapporteur report, the testimony of the will, is being, or has been, he is a "Rapporteur" by law is a person who provides information to law enforcement agencies about the occurrence of a crime. (2) a witness who is also a suspect in the same case. 5. Legal protection in the first category is a form of immunity granted to witnesses, victims, and reporters to not be legally prosecuted criminal as well as civil litigation over the reports, testimony that would be, are being, or have been given by him. However this does not apply to witnesses, victims, and the rapporteur provides information not in good faith. According to the explanation of the legislation is a "give 62 description not in good faith" in this case, among others, giving false information, perjury, conspiracy and misconduct. 6. This provision is a new thing in Indonesia for the criminal law can be applied to all criminal cases. Previous terms of protection in this category is limited given on cases of money laundering. He also limited given in the context of criminal law. While this new provision applies also in the area of civil law. 7. in the implementation of these provisions in some countries referred to as the immunity or the immunity granted to the complainant or witnesses who provide information (disclosure of crime) to law enforcement officials about the existence of a criminal offence which he know and this information will help law enforcement authorities to investigate or prosecute the perpetrators in court. This provision is a shield for the reporting of criminal acts. II. The importance of witness protection Collaborators (Crown Witness) 8. Protection in the second category are regulated in article 10 paragraph (2) is the legal protection given to a witness who is also a suspect. I.e. a witness who also became a suspect in the same case cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty, but his statement could be used as the consideration of judges in the criminal will relieve dropped. It is generally referred to as a Crown witness, the witness: collaborators, collaborators of the law, the state witness, "supergrasses" and pentiti (Italian, meaning "those who have penance"). Or minor perpetrators. 9. The legislation does not specify the meaning of the more detailed it is, but it can be interpreted that the witness in this requirements status as witnesses who also suspects that helps reveal the criminal case, can be either: a. provide a description in the trial for the prosecution were other defendants; b. provide information on the whereabouts of the goods/evidence or other good suspects already or not yet disclosed;

63 c. and other contributions that impact to terbantunya law enforcement officers; and d. the phrase "in the case of the same" in the formulation of the article above. If the meaning of this phrase is only in cases where the witness is also simultaneously the same suspect in the case. 10. The inclusion of this provision in law No. 13 of 2006 A.d. is not without reason. The emergence of criminal cases are heavy handed me many challenges for investigators and prosecutors. Most of these cases involved the criminal offence committed by several perpetrators who have developed strong ties to each other over a certain period, either through personal or business connection connection or through the gathering professions. Bonds often mutual benefit which will cause the players to unite in the face of the investigation or the possibility of a requirement to protect their interests. 11. With regard to the fundamental nature of cases of organized crime or white colar crime, then these cases more difficult for substantiated than with other criminal cases criminal act: consideration of the following barriers, which are often found include: • Difficult knowing who the main perpetrators of the crime; • In most cases, those who know about crimes such as this also related in it, and profit from the crime, so it is not possible to report it to law enforcement authorities; • Most of the perpetrators of the crime using the relationship between some of the key perpetrator-and the nature of such a relationship can only be proven through the help of the principals involved in the relationship in question; • In most cases, it is very difficult or even no "scene of things" which was certainly minimal or forensic evidence to help identify the perpetrators; • Physical evidence of a crime, such as transaction documents and assets purchased with the proceeds of corruption, can be hidden, destroyed, redirected, or entrusted to other people;


64 • in many cases, the perpetrator was the person in power, which can use their influence to interfere with the investigation, intimidate witnesses, or impede a witness to cooperate with law enforcement agencies; • New law enforcers Often find out about it long after the crime occurred, so the trail there are blurry, hard evidence is difficult to track, and the witnesses had been paid or had the opportunity to create an alibi-false alibi. 12. In the case of the corruption Investigators and prosecutors in Indonesia also face additional barriers in investigating and prosecuting cases like this. The fact that perekonomi in this country is very based on cash make the detection of suspicious cash transactions more difficult. In addition, the corruption that occurs by persons the Government apparatus in this country often appear arranged vertically, with the participation of officials in the higher level who have a position strong enough to persuade officials that are at a lower level in order not to cooperate, or otherwise to obstruct the investigation. 13. Due to the problems inherent in public corruption cases, most of the prosecutors on the case of corruption in some countries depend in part on the cooperation of those who have direct knowledge about these crimes and their involvement in it. Aside from corruption cases, handling cases of organized crime, corporate accounting fraud cases, as well as many other complex types of crime involving many defendants relies heavily on evidence provided by those who have direct knowledge over this crime. 14. Sometimes the "people in" these are the principals involved in the crimes of its own way. Insiders can provide important evidence about who is involved, what the role of each principal, how the crimes were committed, and where other evidence can be found. Aside from providing guidance for the investigator, the person in this sometimes participate in the investigation by undercover, record voice or video evidence as important evidence in the prosecution. Last, the people in it can be a very important witness during the trial, 65 gave evidence as the first, eye witnesses of the crime and for the activities of the defendants. To persuade the people in to cooperate in the investigation and prosecution of the perpetrators of other crimes, then it takes using some kind of legal devices that are able to break through the deadlock. 15. Therefore, the one to have participated in a criminal offence relating to a crime organization has important knowledge about the organizational structure, methods of operation, activities and relations with other groups both locally and internationally. So many more countries now have established regulations or policies to facilitate the cooperation of the people in the investigation of cases involving organized crime. These individuals are known by a number of names, including witnesses who work long, Crown witness, witness collaborator, collaborator of the law, the state witness, "supergrasses" and pentiti (Italian, meaning "those who have penance"). 16. Based on the opinions of experts, there is no moral element linked in her motivation to cooperate. Most of them are working together to do it with the hope it will receive immunity or at least reduction of imprisonment and physical protection for himself and his family. In the rules in other countries, people like these are the main participants in the witness protection program. Lightening in combination (or even immunity and) with prosecution witness protection is considered a very powerful tool in the success of a lawsuit organized crime. 17. But in practice can indeed raised some ethical issues because it can also be seen as a gift to criminals with the liberation of punishment of acts of pidananya. 18. To discuss these concerns, "advantage" provided a number of legal systems is not fully immune to the collaborators of complicity in the crime, but rather a lighter punishment which can only be given at the end of the cooperation in the process of the trial. Regulations and policies in a number of countries to clearly separate the reception in the witness protection program from any profit that can be given to the participants by the public prosecutor or by a court with 66 considering previous criminal acts, and the rules and policies stated that legal collaborators need to run the prison sentence for acts of pidananya. III. Background to the formulation of article 10 of ACT number 13 Year 2006 19. Initially in the Bill's protection of witnesses and victims, article 10 is just mecantumkan 1 verse (not included into three verses as in the current ACT): "a witness including as a suspect in the same case cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty, but his testimony could be used as the consideration of judges in the criminal will relieve the overthrow". The inclusion of this section in the Bill is motivated towards the development of a variety of concepts such as the Plea Agreement in several countries. The previous Community initiatives in the Bill (proposed Sentra HAM UI and ICW) have included protection of inidan rumusannya looks almost the same as that proposed by the HOUSE of REPRESENTATIVES in the Bill Baleg, namely: article 11 (1) a witness who also became a defendant in the same case cannot be freed from criminal charges if he is found guilty in a legitimate and convincing, but his testimony could be made consideration of judges in the criminal will relieve dropped (2) the provision in paragraph (1) above does not apply to criminal acts which done with violence and crime related to the heavy violations of human rights. 20. in further development through the DIM, the Government then proposed the revision of the redaksional top Section 10 into: "a witness who is also a suspect in the same case cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty, but his testimony could be used as the consideration of judges in the criminal will relieve dropped it." 21. in the discussion of the Working Committee meeting the BILL'S protection of witnesses and victims (Panja) on 31 May 2006, the meeting approved the formulation of article 10 Panja with some changes the sentence becomes:


67 "a witness who is also a suspect in the same case cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty, but his testimony could be used as the consideration of judges in the criminal will relieve dropped it." 22. the meeting considered Panja important to approve such article because in accordance with the spirit of the beginning of protection for witnesses and victims who have contributed to the disclosure of a crime. Panja also megaggap that there might be a witness and a suspect can be exempted from criminal punishment. That it's better when the witness, the contribution basis for the judge to reduce his punishment in accordance with his contribution. According to Panja required is reduction punitive provisions are merely on the basis of the relevant witness kooperatifnya in the judicial process. 23. in hearing the HOUSE June 15, 2006 between the teams Panja with some experts to accept input in the deliberations of the proposed Bill, about need for protection to Whistle-blowers, pegungkap facts in this Bill and in the deliberations of the meeting of the Panja next on July 6, 2006, which was based on the suggestion of the expert. Pemeritah returned propose the inclusion of a new paragraph [subsection (3)] in article 5 which contains about: "witness, and victim, cannot be prosecuted in criminal or civil legal statements, testimony that would be, are being, or have been given facility" that basically this provision is not a bare because the provisions have also been included in the Act of money laundering. But there is a difference, which in the Act of money laundering protection is only given to reporters while in pemeritah the proposal for this Bill addressed to witnesses and victims. The Government proposes that these provisions are indeed exceptions and more special. 24. However concern in meetings because of Panja with the emergence of a new paragraph (3) including the provisions of article 10 concerning witnesses of the suspects will have the potential to protect the crime the person concerned, if the witness turned out to be involved in crime. The question appeared to limit when seosrang witnesses cannot be prosecuted? 68 it must also be explained. Based on the concerns of the Panja then distinguish first witness where who is not a suspect and the suspect's status that gives the kotribusinya bare see reward can be given to him. 25. In addition to meeting the Panja also stated the need to think about the basic law and theory, such provisions should not infringe the principle of the law in front of the equation can be broken with this provision. But Meeting the practical interests of the aspect of Paja realized then that provision becomes very important to be listed, in addition has also been used in some countries. 26. The Chairman of the meeting of the Panja then proposed that the provisions of paragraph (3) in article 5 concerning the whistle-blower is incorporated into article 10 becomes paragraph (1), it is based on that in principle for witnesses and victims who have been uncovering a criminal offence cannot be prosecuted by law, but need to be made an exception to the rule, special provisions if the witness turned out to be entered in the category as well as the perpetrator in the same case. Therefore, it is necessary to distinguish the first witnesses where who is not a suspect and the suspect's status could then be converted to article 10 paragraph (2), as follows: article 10 (1) witnesses and victims, cannot be prosecuted in criminal or civil legal statements, testimony that would be, are being, or have been given by him. (2) a witness who is also a suspect in the same case cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty, but his testimony could be used as the consideration of judges in the criminal will relieve dropped against him. On May 31, 2006 "referred to in subsection (1) does not apply to witnesses, victims, and the Rapporteur provides information not in good faith".

69 IV. Conclusions and recommendations 27. Based on the above exposure then differentiated between good formulation in article 10 paragraph (1) of article 10 and paragraph (2) of LAW No. 13 of 2006. That the formulation of article 10 paragraph (1) intended for the rapporteur whereas article 10 paragraph (2) is intended for witnesses or collaborators with the language law is intended for protection of witnesses and suspects in the same case. 28. The formulation of article 10 either in paragraph (1) or paragraph (2) of LAW No. 13 of 2006 is a very important provision for the grant of protection efforts for witnesses or reporters who will contribute to the disclosure of criminal cases which became the Institution's mandate the protection of witnesses and Victims (LPSK). LPSK therefore stick to the position of article 10 should remain regulated in law No. 13 of 2006 on the protection of witnesses and victims. 29. LPSK realized that in its application at present, article 10 is still understood differently by both the community as well as by law enforcement in Indonesia. Some matters of concern in the implementation of such article is: a. Related Article 10 paragraph (1), in terms of anything that can't be legally prosecuted either criminal or civil liability to witness statements, the testimony of reporters who will be, is being, or has he? What is the meaning of the phrase, "over the report, the testimony of the will, is being, or has he"? What is the trend of the use of a lawsuit or report the crime of defamation or insult to the rapporteur from some existing cases can be included in the above categories? b. Related Article 10 paragraph (2), is there a particular precondition related to the status of an applicant for protection (witness the suspect) this? In practice, where should the matter that should be looked at penuntutannya? What is the reported advance or lawsuit where a witness becomes a suspect? Or both can be done simultaneously?


70 30. The things above in practice complicate the granting of protection by LPSK against both suspects, witnesses or Rapporteur therefore required an interpretation of the new article. We looked at the COURT can provide a more operational interpretation against article 10. But we hope these interpretations must be aligned with the spirit and objectives of the establishment Act No. 13 of 2006 on the protection of witnesses and victims. 31. LAW number 13 looked LPSK A.d. 2006 disempumakan should be included against the provision in article 10. LPSK therefore has sought to undertake legislative review of the above article 10. Associated with the plan, LPSK currently has teamed up with several relevant agencies in doing the plan revision of LAW No. 13 of 2006. [2.6] considering that the applicant had delivered a written conclusion received at the Registrar of the Court on September 2, 2010, while the Government has delivered a written conclusion received at the Registrar of the Court on 6 September 2010, at the point of each stick with its founding; [1.7] considering that to shorten the blurb in this ruling, everything that happens in the trial simply appointed in the news events of the trial, which is a single entity which was not separated by this ruling; 3. LEGAL CONSIDERATION [3.1] considering that the goal and purpose of the petition a quo is to test article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims (State Gazette of the Republic of Indonesia year 2006 Number 64, an additional Sheet of the Republic of Indonesia Number 4635, hereinafter referred to as ACT 13/2006) against the Constitution of the Republic of Indonesia in 1945 (hereinafter the Constitution);

71 [3.2] considering that before entering the principal petition, the Constitutional Court (hereinafter the Court) in advance will take into account: a. the authority of the Court to examine and adjudicate a petition for quo disconnected; b. the position of the law (legal standing) of the applicant to apply for a quo; The authority of the Court [3.3] considering that under article 24C paragraph (1) of the Constitution and article 10 paragraph (1) letter a LAW COURT, as well as to article 29 paragraph (1) letter a LAW Number 48 in 2009 about the Power of Justice (State Gazette of the Republic of Indonesia year 2009 Number 157, an additional Sheet of the Republic of Indonesia Number 5076, hereinafter referred to as ACT Number 48/2009), one of the powers of the Constitutional Court is to adjudicate on the first and last level that an award is final to examine legislation against the Constitution; [3.4] considering that the applicant's plea is to test the constitutionality of norms of article 10 paragraph (2) of ACT 13/2006 against the Constitution, which became one of the Court's authority, so therefore the Court is authorized to inspect, judge, and break the petition a quo; The position of the law (Legal Standing) the applicant [3.5] considering that under article 51 paragraph (1) of the ACT the COURT along with his explanation, which can apply for testing legislation against the Constitution are those who consider the rights and/or konstitusionalnya the authority granted by the CONSTITUTION of 1945 harmed by enactment of a statute, namely: a. the individual citizen of Indonesia (including groups of people having the same interests);

72 b. customary law community unity along is still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation; c. a public or private legal entities; or d. the State institutions; Thus, the applicant in testing legislation against the Constitution should explain and prove in advance: a. position as the applicant referred to Article 51 paragraph (1) of the ACT the COURT; b. loss of rights and/or constitutional authority given by the Constitution arising from the enactment of law petitioned testing; [3.6] Considering that Court since the ruling of the Constitutional Court the number 006/PUU-III/2005 dated May 31, 2005 and the ruling of the Constitutional Court number 11/PUU-V/2007 dated 20 September 2007, as well as subsequent rulings held that the loss of rights and/or constitutional authority as intended by article 51 paragraph (1) of the ACT the COURT must meet five criteria, namely: a. the existence of rights and/or constitutional authority the applicant granted by the Constitution; b. rights and/or the constitutional authority by the applicant are considered impaired by the enactment of legislation which petitioned testing; c losses must be the specific constitutional (Special) and the actual potential or at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship (causal verband) between the losses in question and the enactment of legislation which petitioned testing; e. of the possibility that by dikabulkannya the petition then postulated that such a constitutional harm will not or no longer occur; [3.7] considering that based on the descriptions as at paragraph [2.2] and [3] above, then the Court will consider the


73 regarding the position of the law (legal standing) of the applicant in the application for a quo as follows: [3.8] considering that in anyway the applicant argued that as an individual citizen of Indonesia which has constitutional rights regulated in the Constitution, namely: article 27 paragraph (1) which States, "all citizens simultaneously its position in law and Government and obliged to uphold the law and rule it with no kecualinya"; Article 28D paragraph (1) which States, "everyone has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law"; Article 28G paragraph (1) of the Constitution which States, "everyone has the right to protection of personal self, family, honor, dignity, and property under his control, as well as the right to security and protection from the threat of fear to do or not do something which is a human right", and article 28J paragraph (2) of the Constitution which States, "in the exercise of rights and freedom, everyone is subject to the mandatory limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and the freedom of others and to meet the demands of a fair in accordance with the moral considerations, religious values, security and public order in a democratic society "; Constitutional rights have been harmed due to the enactment of the provisions of article 10 and paragraph (2) of ACT 13/2006. [3.9] considering that by observing the consequences experienced by the applicant is associated with the applicant's constitutional rights, according to the Court, there is a causal relationship (causal verband) between the losses in question and the enactment of legislation which petitioned the testing, so that prima facie eligible Applicant legal position (legal standing) in order to apply the test of article 10 paragraph (2) of ACT 13/2006 against the CONSTITUTION of 1945;

74 [3.10] considering that because the court authorities inspect, judge, and break the petition a quo, and the applicant has the legal position (legal standing), then the Court will consider the subject matter of the petition; The Court's opinion In the provision [3.11] considering that the applicant in their petition to apply the provision on the grounds that in anyway, i) to prevent the occurrence of violations of the constitutional rights of the applicant (by the way hold and examine the applicant as a suspect), therefore the applicant pleaded the Tribunal Judges the Constitution published a Ruling that ordered the police Interrupted the Republic of Indonesia to stop or delay the investigation and lawsuit alleged criminal acts involving the appellant as a suspect; II) so that the applicant get a guarantee of legal certainty over the process that is being carried to the applicant, since the police force of the Republic of Indonesia continue to perform legal actions with a fixed based on the norm that is being tested, then the applicant's constitutional rights are continuously violated intentionally. Based on the evidence that the applicant subsequently appealed the verdict to the Court of Justice for the provision of i) States are delaying the implementation of the enactment of Section 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses and Victims (LPSK) until there is a final Court verdict against the subject matter of the petition a quo; II) told state police of the Republic of Indonesia to stop the process of investigation over the matter of PT Arwana Salmah Sustainably with the police report No. Pol. LP/272/IV/2010/Bareskrim 21 April 2010 top suspect Susno Duadji and criminal acts of corruption in the management of the use of and accountability for the budget of a grant from the provincial Government of West Java in 2008 with the number of reports No. Pol s. Pgl./485/VI/2010/Pidkor & WORL Susno Duadji suspects over, at least until the existence of the ruling of the Constitutional Court in the case a quo, consisting of fixed laws; III) told state police of the Republic of Indonesia to free the Petitioner from Custody and handed over to the Applicant institution of witness protection and victims as witnesses are protected; IV) told the South Jakarta State 75 Prosecutors to stop the process of prosecution and or ordered the South Jakarta District Court to stop the trial proceedings over the matter of PT Arwana Salmah Sustainably with the police report No. Pol: LP/272/Iv/2010/Bareskrim 21 April 2010 top suspect Susno Duadji and criminal acts of corruption in the management of the use of and accountability for the budget of a grant from the provincial Government of West Java in 2008 with the number of reports no. Pol: s. Pgl./485/VI/2010/Pidkor & WORL Susno Duadji suspects over, at least until the existence of the ruling of the Constitutional Court in the case a quo, consisting of the law anyway. Upon the applicant's evidence, the Court has taken a stance on the trial date, August 19, 2010 by declaring the applicant's provision of despise. Therefore, through this ruling, the Court again stated his attitude about the solicitation provision. According to the court verdict, requests for provision of a quo is not proper according to the law because it is not directly related to the subject matter of the petition a quo with some reason:-that the authorities of the termination of the investigation of a criminal matter is not the authority of the Constitutional Court, because the authority of the Constitutional Court is set up expressly in article 24C paragraph (1) of the Constitution which is then repeated in article 10 paragraph (1) letter a up to d Act No. 24 of 2003 about the Constitutional Court which declared , "The Constitutional Court is authorized to adjudicate on the first and last level that an award is final for 1) Testing legislation against the Constitution of 1945, 2) Severing of disputes the authority of State institutions that are its dibenkan by the Constitution of the Republic of Indonesia in 1945, 3) Disconnect the dissolution of political parties, and 4) disconnect the disputes about election results"; -that in addition, the applicant proposed the provision of solicitation is not appropriate under the law because it is not directly related to the subject matter of the petition a quo with a few reasons: first, in testing law (judicial review), the Court ruling only testing abstract norms, not prosecute cases such concrete investigation or prevention in criminal cases against the applicant;


76 the applicant's provision of application therefore have entered into a concrete case then the Court cannot grant it. Second, in line with the reasons that first then the Court must reject the Commission's verdict application related investigation and prevention conducted by Prosecutors because the Court ruling institution of norms in the case of the test Act (judicial review) are erga omnes. That is, the generally accepted and binding for all cases throughout Indonesia. Therefore, the Court could not break the concrete cases were only against one such case in the petition for a quo because if it's done means contrary to the erga omnes nature of it. Third, the prospective nature of the Court ruling in accordance with the provisions of article 58 of the ACT the COURT and Article 38 and article 39 of the regulation the Constitutional Court number 06/FMD/2005 of Beracara Guidelines In Testing legislation, so that whatever the Court ruling in the case of amar a quo is not retroactive towards concrete matters which are already underway. Based on these reasons, the Court reiterates, nonetheless rejected a plea that the Commission petitioned the applicant; The subject matter of the petition [3.12] considering that the principal applicant's application is a test of the constitutionality of article 10 paragraph (2) of ACT 13/2006 which stated, "a Witness who is also a suspect in the same case cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty, but his testimony could be used as the consideration of judges in the criminal will relieve the dropped". [3.13] considering that before considering the subject matter of the petition, the Court looked at the need to elaborate briefly on the background, goals and purpose the formation of ACT 13/2006, so that it can be acquired understanding of the legislation a quo, particularly article 10 with three verses contained therein, in a perspective that is relatively more complete and adequate.

77 [3.13.1] that it is important in the process of disclosure cases criminal action was suspect, witnesses, and victims, including the complainant. Witnesses and victims is a crucial element in the process of criminal justice, but its existence is far less attention, so many criminal cases that are not revealed and never finished because law enforcement is often difficulty presenting a witness or victim because of threats, both physical, psychic, and her soul from certain parties toward self, possessions or family of a witness or victim who reported to law enforcement; [3.13.2] That in order to help law enforcement agencies uncover criminal cases that required the growth of community participation. For it needs to be created conducive climate by providing legal protection and security to all people who know or find something that helped uncover the criminal act and report it to law enforcement. Those that witnesses, victims and the rapporteur; [3.13.3] That witnesses, victims, and reporters need to get legal protection so that they are not worried or afraid his soul is threatened by certain parties, when they are needed by law enforcement help uncover criminal cases, both in the level of investigation, investigation, prosecution or examination in court. Legal protection to them in criminal proceedings has not yet specifically regulated, while the suspect or the accused has acquired legal protection under article 50 to with article 68 of ACT No. 8 of 1981 CRIMINAL PROCEDURE CODE. Therefore, based on the principle of equality before the law (equality before the law) in the country's legal principles of witnesses and/or victims should be given guarantees of legal protection. [3.13.4] That the background, purpose and objectives as outlined above that LAW 13/2006 created by forming legislation. The House of representatives and the President jointly approve the formation and enactment of LAW 13/2006 with the intent and purpose of providing legal protection of witnesses, victims, and the rapporteur so that their 78 free from worry and fear of the threat when law enforcement help uncover criminal cases. [3.14] considering that in the framework of the understanding as outlined in consideration of the above and as the name implies the ACT 13/2006 on the protection of witnesses and victims, as well as the title of the chapter/section, "protection and the rights of witnesses and Victims, then article 10 consisting of three verses must be meant as legal provisions to protect witnesses, victims and reporters who were not suspects and well intentioned, as award (reward) for the participation of the witness , sacrifice and Rapporteur as good citizens help law enforcement reveal the occurrence of crime. In line with that of article 10 paragraph (2) and paragraph (3) must be meant as a condition that clearly and unequivocally (expressis verbis) are eksepsional of article 10 paragraph (1), so that the provisions contained in article 10 paragraph (1) should be meant not apply against a witness who is also a suspect in the same case, as well as reporters who are not well intentioned. Nevertheless, the participation of the witness who is also a suspect, if the supposition in legal proceedings is proven legally and convincingly, such witnesses are not exempt from criminal prosecution, but his testimony in uncovering the crime still awarded, i.e., as considered in the reduction of pidananya. [3.15] considering that based on the descriptions in the above considerations associated with the propositions in the application the applicant then the legal issues that have to be answered by the Court was whether the provisions of article 10 and paragraph (2) which only rewards (reward) against the participation of witnesses who also became a suspect that his statement had been helpful in the disclosure of criminal acts only as a consideration a reduction in crime, but not freed him from legal proceedings is contrary to the principles of :


79-participation of governance as set forth in article 27 paragraph (1) of the Constitution which States, "all citizens simultaneously its position in law and Government and obliged to uphold the law and rule it with no kecualinya"; -a fair legal certainty as provided for in article 28D paragraph (1) of the Constitution which States, "everyone has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law"; -remove the right to security and protection from the threat of fear to do as set forth in section 28G subsection (1) of the Constitution which States, "everyone has the right to protection of personal self, family, honor, dignity, and property under his control, as well as the right to security and protection from the threat of fear to do or not do something which is a human right", and-limiting human rights (human rights) by preventing people doing fair demands in accordance with the moral and religious values as regulated in article 28J paragraph (2) of the Constitution which States, "in the exercise of rights and freedom, everyone is subject to the mandatory limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the demands of a fair in accordance with considerations of a moral, religious values, security and public order in a democratic society"; [3.16] Considering, to answer the legal issues the court give consideration in accordance with the following problems: 1. Participation in Government [3.16.1] considering that the applicant argued that with the enactment of Section 10 80 paragraph (2) of ACT 13/2006, the right to participate in Government and law as specified in article 27 paragraph (1) of the Constitution. These rights were lost because the applicant had been detained by Investigators with reasons other than as a witness the applicant has also been designated as a suspect. In addition to the evidence filed to support the evidence of the mail/writings, the applicant also filed expert Prof. Dr. Saldi Isra, S.H., MPA, which substantially explained, article 10 paragraph (2) of ACT 13/2006 specifically does not give benefits in the agenda for the eradication of corruption and the legal mafia eradication, because 1) gives no guarantees for witnesses and victims; 2) complicate getting a key witness in the settlement of cases of corruption and mafia law (especially the fashion scandal); 3) difficult to dismantle the mafia and corrupt practices in environmental law enforcement agencies; and 4) witnesses who provide information may be suspect. Against the evidence of the applicant, after observing a plea the applicant, a description of the expert, the Government's information, a description of the House of representatives, and the affidavits of witnesses and Victims Protection Agency, the Court held that, as already outlined in the consideration of paragraphs [3.14], the provisions contained in article 10 paragraph (2) of ACT 13/2006 is the provision that can be analyzed with a very clear and unequivocal (expressis verbis) that the substance normatifnya is a reward (reward) against the participation of witnesses who also suspects that his statement had been helpful in the disclosure of a criminal offence by making it as consideration a reduction in crime. Based on the substantive provisions, the State through the power of common law should be deemed to have not ignored the participation of citizens who have participated and contributed in the disclosure of criminal offence. The State gives awards in the form of a reduction in pidananya. How big is it reduces the pidananya left to the discretion of the judge who put on trial based on his contribution in exposing the criminal offence participation. The award is a great option way according to the law (legal choice) which was done by 81 countries in giving the prize to a witness who is also a suspect, and encourage community participation to uncover criminal acts. In the explanation the public Act No. 13 of 2006 stated, "in order to cultivate public participation to unravel the crime, need to be created a conducive climate by means of providing legal protection and security to all people who know or find a thing that can help uncover criminal act has occurred and report it to law enforcement". Based on the description in the Court's consideration, according to the provision in article 10 paragraph (2) of ACT No 13/2006 proved to be contrary to article 27 paragraph (1) of the CONSTITUTION of 1945; 2. Legal certainty the fair [3.16.2] considering that the applicant had lost his rights to the postulated recognition, guarantees, protection and legal certainty are fair, as guaranteed by article 28D paragraph (1) of the Constitution due to the enactment of Section 10 paragraph (2) of ACT 13/2006. To support the evidence of the applicant in addition to the evidence put forth a letter/writings also filed expert Prof. Dr. Saldi Isra, S.H., MPA, which substantially explained, article 10 paragraph (2) of ACT 13/2006 contains a formula which could potentially give rise to the interpretation which may be detrimental to the witness and the victim giving rise to legal uncertainty contrary to Article 28D paragraph (1) of the Constitution. Based on reasons of legal certainty and the benefit, many countries around the world provide protection to witnesses and victims, such as the United States, South Africa, Canada, New South Wales, Australia and the United Kingdom with not providing the status of a suspect to witnesses, so that the witness with easy opening and dismantling major crimes including corruption. As for expert Dr. Eddy O.S. Hiariej, clarifies article 10 paragraph (2) of ACT 13/2006 does not give a clear and unequivocal formulation against the position of witnesses and suspects as well as in conditions of how one witness becomes a suspect when at the same time


82 also witness status as rapporteur. It thus gives rise to multitafsir and potentially raises the interpretation is unconstitutional, thus causing uncertainty of the law which is contrary to the Constitution. In addition, article 10 paragraph (2) of ACT 13/2006 raises three confusion. First, a witness who is also a suspect in the same case would remove the right of excusatie the defendant as one of the elements of judicial objectivity, because on the one hand, when that person as a witness in court, his statement is valid as evidence because it is spoken under oath, but on the other hand when the corresponding status as defendant description given was not under oath. Second, the ambiguous and raises the question, who will disidangkan first, the offender or a whistle-blower reported, or disidangkan at the same time. Third, the nature of the contra legem by the provisions of article 10 paragraph (1) of ACT 13/2006 exempting the witness, the victim and the rapporteur from lawsuits. Against the proposition, after looking closely at the petition of the applicant, a description of the expert, the Government's information, a description of the House of representatives, and the affidavits of witnesses and Victims Protection Agency, the Court held that, as outlined in paragraphs [3.14] and in accordance with LAW 13/2006 name that is on the protection of witnesses and Victims as well as the title of the section, the protection and the rights of witnesses and Victims, then the substance of the norms of article 10 which consists of three verses must be meant as legal provisions to protect witnesses , sacrifice, and the rapporteur, not a witness who is also a suspect in the same case and not the reporters who are not well intentioned. The protection of the law as a tribute (reward) for the participation of witnesses, victims and Rapporteur as good citizens in helping law enforcement in exposing the occurrence of crime. In line with that of article 10, paragraph (2) of ACT 13/2006 stated, "a witness who is also a suspect in the same case cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty, but his testimony could be used as consideration in 83 judges lightened the criminal will be brought down." The award by the State given to a witness who is also a suspect in question should be viewed as justice because in it there is a balance (balancing) between contributions to the reduction of crime and the criminal disclosure against mistakes. Therefore, it is not appropriate when interpreted in a contrario that a witness who is also a suspect in the same case received no legal protection, so it doesn't get anything. Not exactly the interpretation of reality as a witness because he received an award under article 10 paragraph (2) of the Act a quo due to her participation in uncovering the criminal offence, and as the suspect/defendant he has got legal protection based on the CODE of CRIMINAL PROCEDURE as outlined above. Dimaknainya article 10 paragraph (2) of ACT 13/2006 as conditions are eksepsional of article 10 paragraph (1) of ACT 13/2006 is indeed different from article 10 paragraph (3) of ACT 13/2006. The difference is in the award. A witness who was also awarded the suspects, while witnesses, victims and reporters who are not well intentioned, can be prosecuted by law, but were not awarded in the form of a reduction in pidananya. The provisions that have been quite give justice. The provisions of article 10 and paragraph (2) of ACT 13/2006 have meaning or is an affirmation that the protected witness is merely a witness who is not at all involved as perpetrators in the crime. Based on the description in the Court's consideration, according to the provisions of article 10 and paragraph (2) of ACT 13/2006 does not conflict with article 28D paragraph (1) of the CONSTITUTION of 1945; 3. Sense of security and protection from the threat of Fear [3.16.3] considering that the applicant had lost his rights to the postulated a sense of security and protection from the threat of fear to do, as guaranteed by article 28G paragraph (1) of the Constitution which States, "everyone has the right to protection of personal self, family, honor, dignity, and property under his control as well as the right to security and protection from the threat of fear to 84 do or not do something which is a human right" as a result of the enactment of the provisions Article 10 paragraph (2) of ACT 13/2006 so that according to the applicant, contrary to Article 28G paragraph (1) of the Constitution which States, "... as well as the right to security and protection from threats or fear to do. ..". To support the evidence, the applicant submits proof in addition to letter/writings also filed expert Prof. Dr. Saldi Isra, S.H., MPA, which substantially explained, article 10 paragraph (2) of ACT 13/2006 potentially damaging or thwart the intent of the initial formation of the LAW 13/2006, and not in line with the objective in chapter II, protecting witnesses and victims, but instead can threaten the witnesses and victims. Against the proposition, after looking closely at the petition of the applicant, a description of the expert, the Government's information, a description of the House of representatives, and the affidavits of witnesses and Victims Protection Agency, the Court argued, for the proposition that the applicant stated, if such article is used with the wrong interpretation of potentially eliminating the entitlement to a sense of security and protection from the threat of fear to do for the complainant or witness [vide Petition points 10 page 16 and 14 points page 14] is not right According to the Court, for the formulation of norms in article a quo quite clear, firm, and not ambiguous. Such provisions are based on a reasonable reasoning thus encourages the perpetrators of such criminal acts to provide information honestly in his testimony in order to unravel the crime. On the contrary, there is no arguing that according to reasonable reasoning is acceptable if such provision thus makes people feel afraid and feel insecure to give testimony. On the basis that the Court did not agree with the experts from the Applicant, Prof. Dr. Saldi Isra, S.H., M.P.A. who stated, article 10 paragraph (2) of ACT 13/2006 are not in line with the objective in chapter II, protecting witnesses and victims, but instead can threaten the witnesses and victims. Thus the proposition that article 10 paragraph (2) of ACT 13/2006 is contrary to Article 28G paragraph (1) of the Constitution are not proven and unwarranted under the law;


85 4. Restrictions on human rights [3.16.4] considering that the applicant had argued that losing the rights and freedom to meet the demands of a fair share in accordance with the moral considerations, religious values, security and public order in a democratic society, particularly related to the "corruption prevention" as guaranteed by article 28J paragraph (2) of the Constitution as a result of the enactment of the provisions of article 10 and paragraph (2) of ACT 13/2006. To support the evidence, the claimant submits expert Dr. Eddy O.S. Hiariej, describing on anyway, article 10 paragraph (2) is contrary to the spirit in the history of whistle-blowers, because: (i) the whistle-blowers were not given protection from the threat of the gang, (ii) does not make the information as evidence of the beginnings of the whistle-blower to uncover the crime syndicate, and (iii) information that dismantling the whistle-blower is not used as an excuse for criminal charges. Article 10 paragraph (2) of ACT 13/2006 also raises three confusion. First, a witness who is also a suspect in the same case would remove the right of excusatie the defendant as one of the elements of judicial objectivity, because on the one hand, when that person as a witness in court, his statement is valid as evidence because it is spoken under oath, but on the other hand when the corresponding status as defendant description given was not under oath. Second, the ambiguous and raises the question, who will disidangkan first, the offender or a whistle-blower reported, or disidangkan at the same time. Third, the nature of the contra legem by the provisions of article 10 paragraph (1) of ACT 13/2006 exempting the witness, the victim and the rapporteur from lawsuits. Against the proposition, after looking closely at the petition of the applicant, a description of the expert, the Government's information, a description of the House of representatives, and the affidavits of witnesses and Victims Protection Agency, the Court held, that the constitutional norms of article 28J paragraph (2) of the Constitution is a provision that allows States restrict the implementation of HUMAN RIGHTS and every person is obliged to submit to such restrictions.

86 Restrictions intended to meet the terms of: (i) by law, (ii) with the intent to ensure the recognition and reverence for the rights and freedoms of others, and (iii) to meet the demands of a fair in accordance with the moral considerations, religious values, security and public order in a democratic society. According to the Court, the provisions of article 10 and paragraph (2) of ACT 13/2006 does not constitute a limitation of the implementation of human rights. The provisions contained in it is about legal proceedings against a suspect who has been proven legally and convincingly guilty of committing the crime, still may be prosecuted by law although he had testified against a similar case, because the giving of testimony does not remove liability pidananya. Such a provision is not a limitation, but rather a reasonable case based on justice and the principles espoused in the criminal law system in Indonesia. Therefore, the provisions of article 10 and paragraph (2) of ACT 13/2006 is not a limitation of the exercise of HUMAN RIGHTS then the Court does not need to test the proposition that the applicant is further associated with the terms of the constitutionality of restrictions of HUMAN RIGHTS implementation. As for the evidence of the applicant regarding the whistle blower, the Court held that a statute quo did not set about whistle-blowers. Associated with this Court agreed with the Government's description stating, "the complexity of the position of the whistle-blowers (slit drum beater) that caused the framers of the legislation a quo decides not to incorporate about whistle-blower ...". Thus the applicant's evidence is not relevant for consideration, so must be excluded; [3.17] considering that apart from considerations of the Court against the above legal issues, the Court will need to consider these things below: [3.17.1] That the Court assess the options dilematis 87 legally petition for annulment of article 10 paragraph (2) of ACT 13/2006 proposed by the applicant. On one side of the Court understand the applicant's proposition that if the article is left will remain in force a lot of people are scared to report and give witness in the same case because it can be used as target criminalization without patronage, but on the other side of the Court also understand that if the Government views the article removed can cause the possibility or the doors to the perpetrators of the crime to shelter and escape through the absence of such norms. In addition in the case of witnesses, victims, and the rapporteur it is not the perpetrator of a criminal offence in delik participants inclusion, then the question has got legal protection under article 10 paragraph (1) of ACT 13/2006. Therefore, the Court argued that it was a legal policy choices that do not contain the problem of constitutionality of norms, so that evidence the applicant is unwarranted under the law; [3.17.2] that the applicant argued that Section 10 paragraph (2) of ACT 13/2006 should be given constitutional interpretation of that, "a witness who also became a suspect in the same case cannot be exempt from criminal prosecution if it meant that the position of the suspect set first before the witness testified in the matter". According to the Court, the evidence for the petition is not right because without conditional interpretation (constitutional conditionally) substantive or grammatical basis indeed for such things should be expressed has been proven legally and convincingly guilty of committing the crime. Thus, there is no need for another interpretation of the phrase because it is clearly and unequivocally (expressis verbis) a convicted it will surely become a suspect beforehand. 4. CONCLUSION based on the above assessment of the facts and the law as outlined above, the Court concluded that:


88 [4.1] the Court is authorized to inspect, judge, and break the petition a quo; [2.6] the applicant has legal position (legal standing) to apply; [4.3] the subject matter of the petition is not proven and not grounded in law. Based on the Constitution of the Republic of Indonesia in 1945 and considering Act No. 24 of 2003 on the Constitutional Court (State Gazette of the Republic of Indonesia Number 98 in 2003, an additional Sheet of the Republic of Indonesia Number 4316), Act No. 48 in 2009 about the Power of Justice (State Gazette of the Republic of Indonesia year 2009 Number 157, an additional Sheet of the Republic of Indonesia Number 5076); 5. AMAR'S RULING Judge, stated: in the Solicitation Provision Refused the application for provision of the applicant; In the subject matter of case: the applicant's application to Reject in their entirety; The case was decided in the meeting of the Consultative Constitutional Judge by nine Judges on Friday, three-month date of September of the year two thousand ten and spoken in the plenary session of the Constitutional Court are open to the public on this day, twenty-four date Friday of September of the year two thousand ten by nine Judge Constitution, namely the Moh. Mahfud MD, as the Chair of the sitting member, Achmad Sodiki, m. Arsyad Sanusi, m. N Deputy Maria Farida Indrati, Mochtar, Harjono, Muhammad Alim, Ahmad Fadlil Sumadi and Hamdan Zoelva respectively as members, assisted by Cholidin Nasir as Clerk of the surrogate, as well as attended by 89 Applicant/Power, Government or representing, and the House of representatives or representing. Chairman, ttd. MOH. Mahfud Md. Members, ttd. TD Achmad Sodiki ttd. M. Arsyad Sanusi ttd. M. N Deputy Mochtar ttd. Maria Farida Indrati ttd. Harjono ttd. Muhammad Alim ttd. Ahmad Fadlil Sumadi ttd. Hamdan Zoelva 6. A DIFFERENT OPINION (DISSENTING OPINION) Against the ruling, Hamdan Zoelva of the Constitution a judge has a different opinion (dissenting opinion) as follows: the applicant's Petition questioning the constitutionality of article substantially 22 paragraph (2) of LAW No. 13 of 2006 on the protection of witnesses and Victims, which specifies: "a witness who also became a suspect in the same case cannot be exempt from criminal prosecution when he turns out to be proven legally and convincingly guilty of but his testimony may dijadikanm consideration of judge in a criminal will relieve the dropped ".

90 according to the applicant, article 10 paragraph (1) of the ACT a quo contravenes conditional with the Constitution khsususnya:-article 27 paragraph (1), the right to participate in law and Government,-article 28D paragraph (1), the right to recognition, guarantees, protection and legal certainty are fair; -Article 28G, the right to security, and protection from the threat of fear to do; -Article 28J subsection (2), the right and freedom to meet the demands of a fair in accordance with the moral considerations, religious values, security and public order in a democratic msyarakat; According to the applicant, the rights guaranteed by the Constitution of konstitusionalnya those harmed by the enactment of section 22 subsection (1) of the ACT a quo, because the applicant already well intentioned has opened and reported cases of corruption in law enforcement institutions (police and kejak saan) thus made more suspects and detained by police. According to the applicant, should the applicant as a witness who reported the case as a witness protection rapporteur not to be used as a suspect and was not arrested. The applicant filed the petition before the Court now is a unique case, because the test is not completely laws-laws but rather on constitutional complaints or constitutional complaint, because it is very concerned with cases in which the applicant faced concrito. In examining the applicant's petition, and the Court's obligation to enforce the law and justice, as well as pencapain the goal of social justice and the benefit of the public, is the principle that should be the cornerstone of a major departure for the Court. There are three fundamental aspects that should be considered by the Court, namely the principle of Justice for every citizen as well as the principle of giving priority to the interests and benefit of the public corruption and crime as an extra ordinary crime and organized crime. Therefore, there are three fundamental reasons why the Court should grant the application for Permohon, namely: first, the aspect of Justice. Policies define the applicant as a suspect followed the action of arrest and detention is a form of


91 action and treatment which threatens the freedom of teruas the applicant to uncover corruption cases that have been reported. The applicant has in good faith reported cases open and corruption in law enforcement institutions, environment, in this case the crime of corruption that have been categorized as extra ordinary crime and organized crime, should be given reasonable protection and appreciation, by providing an opportunity to the applicant to open the case or the existence of other cases he knew with a sense of security without fear. The strategic position of the applicant as former officials is important in environmental law enforcement institutions in this country are a source of crime information which is very important. The determination of the applicant as the suspect followed the action of arrest and detention in such cases is one form of action that do not meet the sense of Justice and violates the principle of a fair and legal guarantees to rein in freedom or at least stop the step the applicant undertakes the konstitusionalnya rights and responsibilities as citizens to continue to open the cases of corruption of which he knows or other cases that might be diungkapnya. Second, the principle of benefit/public interest. Whatever the background of the applicant's actions which open and reported corruption cases he knew in the internal Office, a move made the applicant has given huge benefits in an attempt to eradicate the evil of corruption. With a step of a citizen, like the applicant, there is a very large people's expectations will be the opening of various actions is not commendable enclosing part of law enforcers who are immoral and engage in crimes of corruption. The actions of the applicant has provided a good effect for corruption eradication efforts. Supposedly, the applicant is granted legal protection so that you can continue to open and reported numerous cases he knew comfortably, without pressure especially with arrest and detention, although it is possible that the applicant was one of the earlier parts of the crime. The applicant's actions which open cases very good and far more beneficial for the interests and benefit of the public, and the interests of the nation and the State. Third, Corruption as an extraordinary crime and organized. Corruption, as well as the crime of terrorism, the evil of narcotics, as well as part of 92 financial and banking crimes such as money laundering is a crime remarkable (extra ordinary crime) and organized crime in General (organized crime) and done by people who are smart (white collar crime). This kind of crime can only be revealed by way of extraordinary ways. One way that commonly known in exposing crimes like this, is to pull out one of the chain of the networks is to provide protection and security to one of the chain of the networks (people in) who know of such crimes and the network mode, to open up the very crime networks covered it. With the determination of the action he did, as a suspect in the case even though the rapporteur against that, and immediately followed the arrest and detention in such cases will close or at least minimize the possibility of disclosure of network crime more broadly or equal to let such crimes has not more broadly. The evil of corruption in Indonesia, has been established as a common enemy that must be eradicated since the beginning of the reformation in 1999, i.e. Since the promulgation of the Ordinance of MPR RI Numbers XI in 1998, changes of the Law Number 31 of 1999 on corruption eradication modified by Act No. 20 of 2001, establishment of the KPK in 2003 and a range of other government policies. This means, the eradication of corruption is one of the demands of the public justice should respond well by various institutions of the State. Therefore, the eradication of criminal acts of corruption crimes is an extraordinary crime (extra ordinary crime) and organized crime (organized crime) was one of the demands of fairness now desired as transitional justice. Applicant as former officials is important in environmental law enforcement institutions, namely Police RI, an institution that is becoming the public spotlight because of exposure to the crimes of conspiracy by some people in the neighborhood establishments were in the case of Gayus Tambunan, taxes definitely know more and mode of network crime in Indonesia, so should citizens like the applicant granted protection as a witness. Because, in fact, at least two of the three cases were first revealed and reported to an applicant that is a case of criminal acts of corruption and money laundering by the Gaius suspects Tambunan and cases of corruption and bribery in PT Arwana


93 Lestari has been revealed and brought to justice. While one case again, namely the case of the budget in the National Police Headquarters and Police-Police across Indoinesia yet revealed any further, until the applicant against detention by Police investigators. The Act sets out the applicant or anyone citizens who perform feats such as carried out by the applicant into the suspect followed the action of arrest and detention, contrary to the constitutional guarantees granted to every citizen who has the right to security and protection from the threat of fear to do or not do something which is a human right (article 28G paragraph (1) of the Constitution), namely the right to participate in the legal and governance and the obligation to uphold the law and rule without exception. Such action may occur, because of the provisions of article 10 and paragraph (2) of the ACT 13 of 2006 not expressly guarantee the protection of the complainant as a witness in cases like this. Whereas in order for public interests and benefits and to achieve the maximum benefit for the public interest, the applicant should get protection as a witness. In addition action is likewise contrary to the soul contained in Act No. 13 of 2006, as described in Overview of the Act, which States: "in order to cultivate public participation to unravel the crime, need to be created a conducive climate by means of providing legal protection and security to all those who know and find a thing that can help uncover criminal act has occurred and report the matter to law enforcement. The rapporteur should be given adequate protection and security over its report that he did not feel threatened or intimidated both rights as well as his soul. "The granting of witness protection/reporters in such cases described above in casu against the applicant, do not have to give impunity toward the perpetrators of crime (violation of the principle of non-impunity), nor is a violation of the principle of equality before the law. Principal problems to be solved in this case is the principle which is the more at stake when faced between the demands of Justice and the interests of the public benefit/94 with the principle of non-impunity as well as the principle of equality before the law? In my opinion, the public interest and public benefit must be precedence rather than the principle of non-impunity or the principle of equality before the law. The right of participation of citizens in law and Government for a larger public interest as well as to enforce a broader public justice should not be sacrificed just to enforce the principle of non-impunity or the principle of equality before the law. Or at least, give precedence to the principle ditegakkannya public benefit and interest to uphold justice a wider public is far more important than the fulfillment of the principle of non-impunity or the principle of equality before the law, all the actions for the benefit of the public interest and it was done in good faith. Uphold the principle of non-impunity and the principle of equalitiy before the law is good, but it is much better to give priority to the interests and benefit of the principle tegaknya public and broader public justice. This is in accordance with the principle in fiqh, Usul method in which many Affairs and must be done one at a time, then the better the most selected Affairs. Ikhtibarul ashlahi, fa ashlah al ashlah. Therefore, the implementation of the principle of non-impunity and the principle of equality before the law in casu against the applicant in this matter should be deferred until the completion of the disclosure of corruption cases reported by the applicant. Based on the considerations mentioned above in my opinion article 10 paragraph (2) of Act No. 13 of 2006 on the protection of witnesses, is conditional, i.e. Constitutional constitutional if taken to mean that the witnesses are reporters who report crimes of corruption and organized crime can only be used as a suspect or arrested in the same case after case that the finished stories are revealed and terminated by the Court. CLERK of the SURROGATE ttd. Cholidin Nasir

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