7

9. That the petitioners are often in conflict with the company

the plantations that are around the region of the domicity;

10. That as a result of the conflict between the petitioners with the company

the estate, the petitioners have been discredited and charged with the provisions

Article 21 juncto Article 47 of the a quo Act;

11. That the applicant I is a citizen of Indonesia, is a citizen farmer

the people of Upper Silat, Bantan Sari Village, Marau District, Regency

Ketapang, West Kalimantan which owns the land where its land

is used by private plantation company as a plantation land.

The applicant I together with other communities has done

various attempts to prevent and stop the takeover

its land, but did not succeed (vide Proof P-2); 12. That in order to claim the return of the right to its land the applicant

I often made attempts to restore the rights to

its lands, among other things with dialogue and demonstration action;

13. That by means of efforts to restore the rights to

the land used by the plantation company, the applicant I

factual, or at least the potential to be stated to have performed

" The actions that Resulting in garden and/or othun.

the interests of indiges in the damage to the garden is an act that poses damage to the plant, among other things, the logging of trees, the forced harvest, or the The burning that the garden cannot function as it should be, the use of the estate without permission is an act of land sufficient without the permission of the owner in accordance with the laws. In the event of another act, the disruption of the plantation business is, among other things, the actions that interfere with workers

11

so that it may not be able to perform the harvest or maintenance of the garden as it should be ";

32. That the provisions of Article 47 of the paragraph (1) and paragraph (2) of the Act of 18/2004 declare:

a. " Any person who intentionally violates the prohibition of performing

actions that result in the damage to the garden and/or other assets,

use of the estate without permission and/or any other action

resulting in the disruption of the plantation business as intended

in Article 21, threatened with a prison criminal of at least 5 (five)

the year and fine the most Rp. 5.000.000.00 (five billion rupiah) ";

b. " Any person who is due to an action that

results in the damage to the garden and/or other assets, use

the estate without permission and/or other actions that

result in The disruption of the plantation effort as intended

in Article 21, threatened with maximum prison criminal 2 (two)

year 6 (six) months and fine the most Rp. 2,500,000.00

(two billion five hundred million rupiah) ";

33. That in Article 21 of the a quo Act there are two important elements that

must be reviled, i.e.:

a. element of each person;

b. Elements do actions that result in garden damage and/or

other assets, use of plantation land without permission and/or other actions

;

c. resulting in a disruption of plantation ventures;

34. That the same element also exists in Article 47 of the a quo bill, as

Article 47 is the governing norm regarding the criminal threat to

the deeds prohibited in Article 21 of the a quo;

35. That the problem is then the phrase in the section

21 juncto Article 47 of the a quo Act, specifically the phrase " does the action

resulting in the damage to the garden and/or other assets, the use of the land

estates without permission and/or other actions resulting in

The disruption of the estate effort ", formulated vaguely and not

formulated in clear and detailed conduct regarding the qualified deeds

as a criminal offense, as well as its understanding is too broad and complicated. Thus,

every effort and effort is done "every person" in

12

maintaining and champing the rights to its land may be qualified

as a result of " performing actions that result in damage

the garden and/or other assets, use The estate without permission

and/or any other action resulting in the disruption of the effort

the estate ". Thus it can be interpreted publicly and broadly by

rulers and plantation companies;

PASAL 21 JUNCTO ARTICLE 47 OF THE LAW NUMBER 18 OF 2004 ON ESTATES CONTRARY TO THE PRINCIPLES OF THE STATE OF LAW WHICH AFFIRMED IN SECTION 1 OF PARAGRAPH (3) OF THE 1945 Constitution

36. That Article 1 paragraph (3) of the Basic Law of 1945, expressly

states, "The State of Indonesia is the state of the law";

37. That Article 1 paragraph statement (3) of the Constitution of 1945, according to Jimly Ashiddiqie

contains the definition of recognition of legal supremacy and

the constitution, then the principle of separation and the restriction of power according to

system The constitutional constitutionality of the Constitution of 1945, is

the guarantee of human rights in the Basic Law of 1945, the existence of

a free and impartial judicial principle that guarantees equality

any citizen in the laws, as well as to guarantee justice for each person

including against abuse authority by the ruling party

(vide Proof P-12); 38. That as said by Frans Magnis Suseno, the state of law

is based on a desire that state power should be run

on the basis of a good and fair law. The law becomes the cornerstone of all of

the actions of the state, and the law itself should be good and fair. Neither because

in accordance with what society is expected to be, and fair

because the basic intent of all laws is justice. There are four reasons

primary to demand that the state be held and run

its duties under the law are, (1) the legal certainty, (2) the demands

equal treatment, (3) democratic legitimacy, and (4) the demands of reason,

(Frans Magnis Suseno, 1994, Political Ethics Of Basic Moral Principles

Modern Statehood, Jakarta: Gramedia, hal 295);

17

the invitation. With the demfish forming provisions in Section 21 juncto

Section 47 of the paragraph (1) and paragraph (2) of the a quo of real are also performed with

violating the provisions of the law and it is also a violation of

against the constitution that guarantees that the country of Indonesia is

the state of the law;

54. That Act No. 10 of 2004 although in the hierarchy

formal legislation included in the category of Invite-

Invite, but in the process of susbtantif it is an extension of

the provisions of Article 22A of the Constitution 1945, which mentions, "Further provisions

about the layout of the draft law is set with the invite-

invite";

55. That if associated with principles related to regulatory materials

legislation, Article 21 juncto Section 47 of the paragraph (1) and paragraph (2) Act a

quo violates and violates the principles of Law Number 10

In 2004 on the Establishment of the Laws, that is

order of order and legal certainty, that is any regulatory material material

laws should be able to generate order in the community

through a guarantee of legal certainty;

56. That the provisions of Article 21 juncto Article 47 of the paragraph (1) and paragraph (2) of the Act a quo

which violate the principle of legality and predictibility, mean to have violated

the terms and norms of human rights recognized in the constitution,

which is one of the principal principles for the law of the state of the law.

PASAL 21 JUNCTO ARTICLE 47 OF THE LAW NUMBER 18 OF 2004 ON THE ESTATE, CONTRARY TO THE GUARANTEE OF LEGAL CERTAINTY, AS SET IN SECTION 28D AYAT (1) UUD 1945

57. That Article 28D paragraph (1) of the 1945 Constitution states, "Everyone is entitled to

recognition, guarantee, protection, and legal certainty of law and

equal treatment before the law";

58. That the legal certainty and equal treatment in advance of the law

is one of the principal features of the state of law or the rule of law

as stated in Article 1 of the paragraph (3) of the 1945 Constitution

18

states, "The country of Indonesia is the legal state", where certainty

the law is a precondition that cannot be dissolved;

59. That asas of legal certainty becomes a mischaracterless of the legal state- The rule

of law, in which it contains asas legality, predictibility, and

transparency. As it is known that the legal state's description is

"a legal system in which rules are clear, well-understood, and fairly enforced";

60. That legal certainty (certainty), one of which contains an understanding

that the law should be predictable, or meets the predictibility element,

so that a legal subject can estimate what rules

underlying their behavior, and how the rule is interpreted and

is implemented;

61. That, according to Gustav Radbruch, the law (Idee des Rechts)-which

is instituted in a form of state of law, must meet three

general principles, namely: purposiveness- humanitarian expediency (Zweckmassigkeit), justice

- fairness (Gerechtigkeit), and legal certainty- legal certainty

(Rechtssicherheit). The three elements must be in the law,

both the judge and the judge ' s ruling, proportionally or

draw, lest any of his units be unaccommodated, or one

dominating the other. (vide Proof P-20); 62. That according to Radbruch's explanation for making the law right-

is really proportionate, it's actually very difficult, because of the legal sense that

one with the other, basically having the values that mutually

contradictory -- contradiction (antinomy), for example between certainty and

justice. Therefore, the laws that apply in a society

the law, must be the balance of various disputes-antinomy, such as

with the formulation between legal certainty, humanitarian expediency, and justice;

63. That the principles of law forming a fair share according to Lon Fuller

in his book The Morality of Law (legal morality), among them:

a. laws should be made in such a way that it is understandable

by the common people. Fuller also named this thing as a desire

for clarity;

b. rules should not be contrary to each other;

30

is in conflict with Article 18B of paragraph (2) of the 1945 Constitution, as long as it is not

read " proprietary rights of the rights in accordance with the laws

and/or rules applicable within the customary law society ";

6. When the Assembly of Justice of the Constitutional Court has a decision

another, please the ruling as well- ex aequo et bono;

[2.2] draws that to prove its control, the applicant

filed the evidence. surat/written that was given a Proof of P-1 until with Proof

P-26 as follows:

1. Proof P-1: Photocopy Act No. 18 of 2004 on

Plantation;

2. Proof P-2: Photocopying Case Eviction Of The Upper-Silat Indigenous Region That

Done by PT. Wake Up Nusa Mandiri;

3. Proof P-3: Photocopy Of The PDM Case Register Number-

44/KETAP/01/2010;

4. Proof P-4: Photocopy Number 47 /Pid.B/2010/PN.KTP dated to 18

March 2010;

5. Proof P-5: Photocopy of Berdomiciled Letter Number 474.4/756/Pem on behalf of

Japin;

6. Evidence P-6: Photocopy of the defendant ' s Call Letter on behalf of Vitalis Andi;

7. Evidence P-7: Photocopy of the Decree of the Minister of Agriculture and Agrarian;

8. Evidence P-8: Photocopy of Criminal Charges on behalf of Sakri bin Wirsalamun and

kawan-kawan;

9. Evidence P-9: Photocopy of the Blitar State Court Termination;

10. Proof P-10: Photocopied copy Number 274 /Pid.B/2005/PN.TTD

dated December 13, 2006;

11. Evidence P-11:

12. Evidence P-12: Photocopy of the Book of the Law of the State of Indonesia

by Prof. Dr. Jimly Asshiddiqie, S. H;

13. Evidence P-13: Photocopy of Prof. Miriam's Basic Book of Political Science

Budiardjo;

14. Evidence P-14: Photocopy of the Constitutional Book and the Constitutionalism of Prof.

Dr. Jimly Asshiddiqie, S. H;

36

is potential that reasonable reasoning can be assured of

occurring, and whether there is a causal relationship (causal verband) between the loss

and the enactment of the Act Which is expected to be tested;

The government does not agree with the presumption of the applicant stating

that being a potential target for the noose using the provisions

which is being honed to be tested, is considered to have been adverse rights and/or authority

the constitutionality of the applicant, and hence considered contrary to the UUD

1945. According to the Government that the petitioners cannot configure it

the court ruling has a fixed legal force (inkracht van gewijsde)

as a form of constitutionality loss, which the para should be able to do

The applicant if in the process of inquiry, inquiry until the existence of a ruling

a court which is deemed unsuitable for the procedure (due process of law)

and is considered to have been harmed in the sense of fairness of the petitioners, then

The applicant may make an attempt by the Law of Appeal, Cassation, and the Review

Back (herziening);

That for further applicants feel a loss

constitutional due to the provisions of Article 21 and Article 47 of the bill a quo,

but therefore it needs to be proven its existence, the Government in this regard

may provide a response as follows:

Against the applicant I and II, in this case the applicant I declared itself

The Community of Adat Silat Hulu, Bantan Sari Village, Marau District, Regency

Ketapang, West Kalimantan demanding the development of indigenous lands that

deprived and used PT. Build Nusa Mandiri (BNM) as land

estate. Furthermore, the applicant declared himself Secretary-General

Community Alliance Adat Jelai Kendawangan (AMA JK) The joint-

same Society of Adat Silat Hulu, Bantan Sari Village, Marau District,

Ketapang Regency, West Kalimantan leads the development of the indigenous land

which was deprived and used PT. Build Nusa Mandiri (BNM) as land

estate. That further on February 22, 2010, the applicant I and II

was designated as a suspect and charged with the " action that

resulting in the damage to the garden and/or other actions resulting from

The disruption of the estate " as set out in Article 21 and Article

47 Act a quo;

37

That as a result of its actions in the Decree of the Tapang State Court

No. 151 /Pid.B/2010/PN.KTP dated 28 February 2011 The applicant I and

the applicant II proved legally and decisively. guilty of committing a criminal

in action that resulted in the disruption of the plantation effort, by

hence each one being sentenced for 1 year (vide BP-1 attached); According to the Government, Plantation Act in casu provisions that

are being honed to be tested at all dislimiting and/ or eliminate

the constitutional rights of the Applicants provided by the Basic Law

1945. On the dasamya is not appropriate if the applicant I and the applicant II in search

the materially truth postulate that its constitutional rights have been violated by

the provisions of Article 21 and Article 47 of the a quo. By stating that the

The applicant is in the interest of demanding the development of the customary land that

is considered the Applicant Deprived and used PT. Wake up Nusa Mandiri

(BNM) as a plantation land, when it is impossible if

companies that do not have rights such as HGU perform

deviations are considered innocent in the conduct of the undertaking. estate.

The reality is increasingly clear and real is the legal interest of the

The applicant is in the scope of the virginity;

In addition the court sentenced the provisions of Article 47 of the paragraph (1)

The Act a quo as it is proven that the applicant I and the applicant II also violate

the provisions of Article 55 (1) The paragraph (1) of the Code: "That they who

do, who are instructed to do and do the deed"

with the fact that the applicant I and the applicant II participate in the action

that Result in the damage to the garden or the disruption of the plantation business;

Against the applicant III and the applicant IV, in the case of the applicant III,

as the Farmer of Soso Village, the district of Gandusari, Blitar County, East Java

which The land lands of the former erfpacht were held by PT. Kismo

Handayani located in Soso Village, Gandusari District, Blitar Regency.

In order to ask for clarity of the status of the land he was cultivated to PT. Kismo

Handayani, on 10 July 2008, the applicant III together about 250

(two hundred and fifty) Soso villagers did the action in front of the office

the plantation company PT. Handayani's kismo. Next the applicant III was charged

and charged with an oieh Public Prosecutor on Blitar State Prosecutor because

38

performing "actions that result in garden damage and/or action

others resulting in the disruption of the estate effort" as

is set in Section 21 and Section 47 Laws a quo. Information obtained that

The Blitar State Court has declared the Applicant III guilty and dropped

sentence of probation for (5) five months in prison;

The applicant IV who declared as a Farmer residing in Dusun III Likes

People of the Village Pergulaan District Sei Rampah Regency Serdang Bedagai

North Sumatra Province as well as one of the claimed owners and entered into

part of the HGU company PT. PP. London Sumatra (Lonsum) Tbk. That

The applicant IV assumes that there is rights deprived by PT. PP. Lonsum Tbk.

On March 20, 2007, the applicant IV together with ± 300 (three

hundred) people broke into the land of dispute to do the planting above the area!

The claimed PT. PP. Lonsum Tbk. A few days later, the applicant IV

together with 10 (ten) others got the call as

the suspect from the Polres Serdang Bedagai in a cage has broken the Article

47 verses (1) Act a quo. Next the applicant IV was tried and sentenced to death during the

1 (one) year. Based on the Supreme Court ruling No. 709

K/Pid.Sus/ 2007 which stated thal right of the applicant given by Invite-

Invite Basic 1945;

b. that the constitutional right of the applicant is considered by para

The applicant has been harmed by an Act that is tested;

c. that the constitutional loss of the intended applicant is specific

(special) and actual or at least as potential as it is

reasonable reasoning can be certain to occur;

d. Due (causal verband) between the loss and

the enactment of the Act is moveed to be tested;

e. It is possible that by the requese claim of the person's rights to be the right

that someone else can claim. With regard to Moh's opinion. The Mahfud

MD, then the applicant is supposed to be aware of the need

enlist Article 21 juncto Article 47 of the Law No. 18 Year 2004

about the Plantation to the Constitutional Court;

From the description in Above and all requests for in casu

with respect to legal standing (legal standing), according to the Government,

The petitioners may not be able to explain precisely whether the applicant is

as a party that has been harmed by the rights and/or its constitutional authority

over The Plantation Act, in particular the provisions of which

is asked to be tested on top of. The petitioners can't.

42

conceptored a fixed legal court ruling

(inkracht van gewijsde) as a form of constitutionality loss;

More according to the Government, The terms of the a quo provide

the certainty and protection of the right guaranteed by law. This is in line

with Article 28J paragraph (2) of the Constitution of 1945 which reads:

" In exercising its rights and freedom, each person shall be subject to the restriction specified by the law with the intent to guarantee it. recognition and respect for the right of freedom of the fain people and to meet fair demands in accordance with moral considerations, religious values, security, and public order in a democratic society. " Based on the thing above, the Government argues the applicant

in this request does not meet the qualifications as having

legal standing (legal standing) as it is intended by the provisions

Article 51 of the paragraph (1) of the Law No. 24 of 2003 on the Court

Constitution, nor on the basis of the Constitutional Court ruling

preceding;

Therefore, according to the Government is appropriate if Your Majesty Chairman/Assembly of Judges

Constitutional Court wisely declared a plea The applicant

rejected or at least was not acceptable (Niet Ontvankelijk Verklaard);

But so if Your Majesty the Chairman/Assembly of the Constitutional Court argued

another, following the Government's explanation, as follows:

III. THE GOVERNMENT 'S EXPLANATION OF THE 2004 18TH YEAR' S POLICY OF TESTING ON THE ESTATE

That Plantation has an important and strategic role in

national development, especially in increasing prosperity and

the welfare of the people, the acceptance of state devisa, the provision of employment,

acquisition of nllal add and competitial power, fulfillment of the consumption needs in

the country, the raw materials industry in the country as well as managing management. source

natural power sustainably;

Farm development Based on plantation technical culture

within a management framework that has economic benefits to the source

a continuous power of nature. The development of a plantation that

continuity will provide the benefits of increased prosperity

43

and the people's well-being is optimally, through the same opportunity to

gain access to natural resources, capital, information, technology, and

management;

The access is not available. must be open to the entire Indonesian people. As such,

there will be a harmonious and mutually beneficial relationship between the perpetrator

the plantation business, the surrounding community, and the stakeholders (stakeholders)

others as well as the creation of management integration Upstream and downstream plantation.

The estate is thus in line with the mandate and soul

Article 33 of the paragraph (3) of the Basic Law of 1945 is that the earth, and the water, and

the wealth of nature contained therein. controlled by the state and

to be used for the great prosperity of the people. The plantation effort

proved to be tough enough to survive a recession storm and the monetary crisis that

hit the Indonesian economy. For that, the estate needs to be held,

managed, protected and used in a planned, open, integrated,

professional and responsible for improving the people's economy,

nation and country;

For achieve the objectives of the plantation development and provide direction,

guidelines and controller tools, need to be structured planning estates that

based on national development plans, district layout plans,

potential and performance Plantation development as well as environmental development

internal strategic and external, science and technology, social culture,

environment, markets, and aspirations of the region by staying upholding

the nation ' s integrity;

The granting of land rights to plantation efforts must remain

customary law society rights, as long as the reality exists

and does not conflict with higher laws as well as the interest

national. This is in accordance with the provisions of Article 9 of the paragraph (2) of the Act of 18/2004, in which case

the land required is the property of the customary law society that

in fact still exists, predating the granting of rights such as property rights,

rights For effort, building rights, and/or use rights, the applicant is mandatory

conduct deliberations with the customary legal community of the rights holder

and the citizens of the rights to the land concerned, to obtain

the agreement about the surrender of the land, and in return;

44

In explanation of the provisions of the Plantation Act specifies the people's criteria

customary law that, in fact, the a quo Act still exists

must meet the element:

a. The public is still in the form of paguyuban (rechtsgemeinschaft);

b. there is an institutional in the form of a customary ruler device;

c. there is a clear customary law region;

d. there are links and legal devices, in particular the customary courts that are still

are adhered to; and

e. There was a funeral with local regulations.

This is in line with the Decree of the Minister of State Agraria/Head

National Pertanahan Number 5 of 1999 on the Settlement Guidelines

The Bill of Rights of the Law of the Adat Law Society stated that:

1. The rights of the ulayat and similar to that of society, the customary law is

the authority that according to customary law is held by the legal society

a particular custom over a particular region that is the living environment of the people

its citizens to taking advantage of natural resources, including the ground

in the region, for its survival and life, which

arising from the relationship laboutly and hereditary bathiniah and not

disconnect between the communities the customary law with the region

is concerned;

2. The land of the ulaal truth and justice, were not just

a formal procedural victory. The other is accepting the verdict

which has been legally established and has a fixed legal force

(inkracht van gewijsde). If one problem is already checked and disconnected by

the court through the procedure and the consideration it is in and right, then

however dissatisfied all parties remain to accept it. An unintelleable

insistable is a claim on the right to contrary to the court ruling

which already inkracht, for the opposite of th

Against control/presumption of the applicant as mentioned in

the subject of the above application, the Government may convey an explanation as

following:

That in connection with that the provisions of Article 21 and Article 47 of the Act

Number 18 of 2004 on Plantation, which is considered detriable

constitutional The petitioners must be tested by the truth under the 1945 Constitution.

Those provisions that represent the following:

Article 21:

48

" Everyone is prohibited from performing actions that result in garden damage and/or other assets, use of plantation land without permission and/or other actions that result in a disruption of the effort estate ". The explanation of Article 21: " The act which results in the damage to the garden is an act that poses damage to the plant, among other things, the logging of trees, the forced harvest, or the burning that the garden is cannot function as it should be ". "The use of estate without permission is an act of land sufficient without the permission of the owner in accordance with the laws". "What is meant by other actions that has caused the disruption of the plantation effort is, among other things, the actions that annoy the workers so that it cannot do the harvest or the maintenance of the garden as it should be". is:

1. Everyone;

2. Prohibition on actions that result in the damage to the garden and/or

other assets;

3. Use of plantation land without permission and;

4. Other actions that result in the disruption of the plantation business.

It can be clear to us clearly that what each person means is

a person or individual that means or is addressed to anyone

or man who is the subject of law. The person or individual referred to

in this provision is prohibited:

1. Perform actions that result in garden and other assets damage

that is an act that causes damage to plants, among other

trees, tree logging, forced harvesting, or burning so that the garden is not

can Work as it should. In this case it is obvious the intent

Act maker, which is prohibited is all action or

deeds which result in the garden cannot function. The emphasis

not solely of the formyl delicical formula would be but "a result of the deeds

performed" (the material delik) that resulted in the orchard not functioning. This

means, the meaning of the deeds in this section cannot be extended

as a heart, for example if one steps on a plant (grass) not

could be categorised in violation of Article 21 of the a quo;

2. Use of a plantation land without permission of an act of action without

sePermission of the Owner of the Right under the laws. It's pregnant.

49

meaning, anyone is prohibited from violating the rights of another person's property,

HGU, HGB, and the Use Rights protected by Act No. 5

Year 1960 jis Government Regulation Number 40 in 1996, and Regulation

Number 24 of 1997;

3. Other actions that result in the disruption of the plantation effort

are, among other actions that interfere with workers so as not to be able to

perform the harvest or maintenance of the garden as it should. In this case

this emphasis is anything that carries the consequences of entrepreneurs

the estate cannot do the harvest or the maintenance of the garden. If

does not interfere with the a quo section of the Act.

From the description above, according to the Government if there is a body

law (corporation) that commits damages

orchards and/or other assets, the use of the estate without permission and/or

other actions that result in the disruption of a fixed plantation effort

subjected to criminal provisions is the person or any person

responsible in the corporation.

In general, the structure of the formula criminal charges, at least contain a formula

about:

1. the subject of the law to be subjected to such norm (addresmoment norm);

2. banned deeds (strafbaar), either in the form of doing something

(commission), do not do something (omission) and inflict effect

(events incurred by misbehavior); and

3. criminal threat (strafmaat), as a means of imposing an appliance or

may be given the provision.

In general use the idiom "whose goods" as padanan "hij die" (only

refer to humans). In some legislation outside of the Criminal Code, also

is used the term "every person". Idiom "whose goods" in the Penal Code refer

to the individual person, whereas "any person" in some Invite-

Invite in Outside of the Penal Code, it is defined as "individual persons" or "corporation".

However, there are some laws that addreswhen normof which is also corporate

using "whose goods". For example, Act No. 11 of 1995

uses the term "whoever", even if the criminal offense

in it is addressed to the corporation.

50

Section 47 of the paragraph (1) and (2):

(1) " Any person who intentionally violates the prohibition of committing acts that results in the damage to the garden and/or other assets, the use of the estate without permission and/or other actions resulting in the disruption of the effort The estate, as referred to in Article 21, is threatened with a prison criminal of at least 5 (five) years and a fine of the most Rp. 5.000.000.00 (five billion rupiah) ".

(2) " Any person who is due to his behavior is performing that act. Result in the damage to the garden and/or other assets, the use of the estate without permission and/or any other action that resulted in the disruption of the plantation effort as referred to in Article 21, threatened with prison criminal at most 2 (two) years 6 (six) months and fine the most Rp 2,500.000.00 (two billion five) Hundred million rupiah) ".

The elements of Article 47 of the a quo:

1. Each person is intentionally and/or his or her behavior;

2. Violate Iarangan performing actions that result in damage

orchards or other assets;

3. Land use without permission;

4. Other actions that resulted in the disruption of the plantation effort;

5. The penultimate prison element 5 (five) years and the most fines of the Rp.

5.000.000.00 (five billion rupiah) for deliberately breaking Iarangan,

and penultimate criminal 2 (two) years 6 (six) months and the most fines

Rp 2,500,000.00 (two billion five hundred million rupiah);

Article Act a quo it refers to Article 21 of the a quo, as it is based on the theory

systematic interpretation, for anyone in violation of the elements Article 21 Act a

quo either intentional or due to negligence that could result in its disruption

The efforts of the t (IUP) or

The Cultivation Plantation Permit (IUP-B) is required to build a garden for

the society is about at least 20% of the total area of the estate

which It's been passed by the company. This proved that the exploitation of the effort

a free-free plantation that the petitioners feared could not

would happen. Related limits on the use of plantation areal by one

plantation companies have been set up in Agriculture Minister Regulation No. 26

Permentan/OT.140/2/ 2007 on Plantation of Plantation Effort.

that have related estates in between: Invite-

54

Invite Number 5 Year 1960 on the Basic Rule of Agrarian,

Government Regulation No. 40 of 1996 on the Right of Guna Effort, Right of Guna

Building, and the Right Use of the Land, Act Number 32 of the Year 2009

on the Protection and Management of the Environment, Act Number

26 Years 2007 on the Alignment of the Space, State Minister Regulation

Agrarian/Head of the National Pertanahan Agency Number 2 Year 1999 on Tata

How to Obtain Location Permissions. Law No. 5 of the 1960s on

The Basic Law of the Agrarian-subjects relates to the bill a quo in terms of

the use of land for plantations in Chapter III. Act Number 32

Year 2009 on the Protection and Management of the Related Environment

with the Act a quo in terms of the estate partnership (Part IV) and

preservation of the environmental function (Part VII), Act Number 26

Year 2007 on the Alignment of the Space with the a quo Act in terms

protection of the geographic region of location-specific plantation products (Article

24). Minister of State Minister Agrarian/Head of the National Pertanahan Agency Number

2 Year 1999 on How to obtain the Location Permission relating to the bill a

quo in terms of the requirement to obtain a plantation business permit

as set in Regulation of the Minister of Agriculture Number

26 /Permentan/OT.140/2/ 2007 on the Plantation of Plantation Effort.

Any plantation effort that has met the provisions of the stated

Act and other executor rules have a right in this

build and maintaining infrastructure and environmental means and a facility that

exists in an areal environment of the right to which it is. This is as set

in the provisions of Article 12 of the Government Regulation No. 40 of 1996 on

the Right of Guna, the Right of Building, and the Right To Use of the Land. Where

described the Guna Right Holder Liability among others to build

and maintain the existing infrastructure and environment facilities

in the area of the Guna Rights area.

From that description above, it can be drawn to the conclusions of the provisions of Article 21 and

Article 47 Act a quo has fulfilled the asas lex certa (clear, certain, and not

doubtful). In the event of the formulation of the criminal provisions, the provisions of Article 21 and Article

47 Act a quo have also complied with the principle of legality so as to provide reassurance

the legal certainty. Article 21 juncto 47 UU a quo this also provides reassurance

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protection and legal certainty for plantation ventures, land rights,

spatial arrangement, and environmental management. Article 21 and Article 47 of the bill a

quo also have warranted a guarantee of the balance between rights and obligations

in accordance with human rights (human rights).

That please pay attention to the Supreme Court Justice of the Constitutional Court

who examined and courted a quo, regarding some of the evidence

delivered by the invocation of a citation and writing that created

open/facts in the trial. The government has argued that it is not

that it is used as evidence by the petitioners, as it is considered to be: objectively

existence; it is not real and it is not necessarily true, so it is not

the main fact for the is made as an assessment material in consideration at

the trial.

Possible facts are notoir feiten, that is: the facts that are considered

"commonly known". Notoir feiten is often also called "general knowledge". Anything

which has been generally known by the public, does not require

proofs. Notoir feiten is "heiden omstandeg" or about a thing,

is:

− the summary of circumstances or events known to the general and

barberates with it generally agree to the event of a thing or

The event will be the actual state and should be;

− Or the reality of the human experience that an event or event

will always present a certain definite conclusion.

That the purpose of the proof is to convince a judge of truth

events, then from That should be proven to be an event or an event-

an event put forward by the parties that remain unclear or that

is still a matter of the court. The things to prove are

things that are disputes or disputes that are put forward by the party, will

but be denied or disnumerable! by other parties. It is above being reasonable

if the evidence submitted the applicant is ruled out.

As for the testimony of the petitioners who considered the provisions of Article 21 and

Article 47 of the a quo Act is considered to be contrary to the provisions of the Applicant. Article 1 paragraph (3),

Article 28D paragraph (1), Section 28C paragraph (1), Section 28G paragraph (1) of the Basic Law

56

The State of the Republic of Indonesia in 1945, then the Government may deliver

explanation as follows:

1. The provisions of Article 21 and Article 47 of the a quo do not conflict with the principles of the state of law as Article 1 paragraph (3) of the 1945 Constitution That Article 1 paragraph (3) of the 1945 Constitution reads "The country of Indonesia is the country

the law." According to the Applicant provisions of the bill a quo it is a violation of the legal state concept (rule of law). On the side

other applicants consider rule of law to be defined as " A legal

system in which rules are clear, well-understood, and fairly enforced ". With

one of its features there is a legal certainty that contains asas of legality,

predictibility, and transparency. The provisions of article a quo considered

have violated the principle of legal certainty as one of the legal states '

or rule of law as opposed to the principle of legality, predictibility, and

transparency.

The government argues that the provisions of the a quo Act are not

violations of the concept of the state of law (rule of law). Citing Moh ' s opinion.

Mahfud M. D said, the First Ciri of the legal state is the presence of

recognition and protection of human rights. Both of them

a judiciary free from the influence of something power or other power and

impartial. The third feature of the legal state is the legality of the meaning

all forms of law.

All actions of all citizens, both ordinary people and rulers,

must be justified by law. In Indonesia there are rules that contain

provisions for various actions. Any action must be valid according to the rules

other side. For the "rights and obligations", an

"event" by law is linked as a result. That is, right

a person against something, resulting in a liability in

another person, that is respect and should not interfere with that right.

The right can arise on the subject of the law caused by someone have

committing the obligations that are the terms of obtaining the right. The provisions of Article

21 UU a quo have provided guarantees of protection and legal certainty for

any plantation effort. This is i>The estate is, among other things, the actions that interfere with workers so

cannot do the harvest or the maintenance of the garden as it should be ".

Next Bagir Manan states the second principle contained in the principle

The legal certainty is the principle asas of the Act stipulating various devices

rules about the way the government and its officials are performing

Government. Article 21 Act a quo has complied with the principle, in which Article

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21 UU a quo is a rule device that is the basis of actions

governments in the field of plantation business which are closely intertwined

with provisions which are set up in other sections in the a quo

and other related perinvitation rules. It is also the uniformity of

the law and avoes the conflict between the rule of law one with the other.

From the description of the explanation above, according to the Government, Article 21 and

Article 47 of the Law Number 18 Year 2004 on Plantation is not

contrary to the principles of the law states affirmed in

Article 1 of the paragraph (3) of the 1945 Constitution, which reads, "The country of Indonesia is the country

law."

2. The provisions of Article 21 and Article 47 of the a quo do not conflict with the guarantee of legal certainty as set out in Article 28D paragraph (1) of the Constitution of 1945

That the provisions of Article 28D paragraph (1) of the 1945 Constitution read, " Everyone

reserves the right to confess, guarantee, protection, and fair legal certainty

as well as the same treatment before the law ".

That according to the Applicants of Article 21 and Section 47 of the paragraph (1) and

(2) the bill a the quo reflects the level difference and the treatment (unequal

treatment), Injustice (injustice), legal uncertainty (legal uncertainty), and

are discriminatory against the applicant because of this provision

any actions committed in order to maintain and

fighting for his rights and defending the rights of the Peasants ' community can be

qualified arbitrarily to be an act which could

be interpreted and qualified as " hinting and disrupting the course of the effort

A plantation. " When demanding a right of both individual and collective guaranteed

by various laws including the 1945 Constitution, so

resulting in a warranty of legal certainty as set forth in

Article 28D paragraph (1) of the 1945 Constitution.

The Government argues that the provisions of Article 21 and Article 47 of the a quo instead

have given the recognition, assurance, protection, and legal certainty that

fair and equal treatment before the law, it is in harmony with Article

28D paragraph (1) of the 1945 Constitution. According to the Government, any actions undertaken

in order to maintain and fight for his rights as well as defend