VERDICT Number 57 /PUU-VIII/2010

FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA

[1.1] Which examines, prosecuting, and severing the case constitution on

first and last level, dropping a ruling in the case of

Testing of Law Number 2 of the Year 2010 on the Upper Change

Act No. 47 of 2009 on Budget Revenue and

Country Shopping of the 2010 Budget on the Country Basic Law

Republic of Indonesia 1945, submitted by:

[1.2] 1. Indonesian Human Rights Committee for Social Justice (IHCS), address on Jalan Mampang Prapatan XV Number 8A RT 003 RW 04 Jakarta South 12790, in which case is represented by Gunawan, Indonesian citizen, post of Secretary of General Affairs;

Referred to as ----------------------------------------------------------------- applicant I;

2. Community Practice for the Welfare and Alternative Development Countries (PRAKARSA), address on Jalan Rawa Bamboo I Block A Number 8-E RT 010 RW 06, Subdistrict Market Week, South Jakarta 12520, in this case represented by Purnama Adil Marata, Indonesian citizen, Interim Executive Director/Board Secretary of the Prakarsa Society;

Referred to as ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ The Indonesian Forum For the Transparency of the Budget (FITRA), address on Jalan Menteng Wadas East Number 101, South Jakarta 12970, in which case is represented by Yuna Farhan, a citizen of Indonesia, the post of General Secretary of General Affairs;

Referred as -------------------------------------------------------------------------------------------

2

4. Society of Initiative, address in Bojong Asih, RT 006 RW 004, Kelurahan Babakan Tarogong, Bojongloa Kaler Subdistrict, Bandung, in this regard represented by Dohny Setiawan, Indonesian citizen, Chairman's office;

Called as ------------------------------------------------------- APPLICANT IV;

5. The Pesantren Development Society and Society (P3M), address in Jalan Cililitan Kecil III Number 12 Kramatjati, East Jakarta, in this regard represented by Abdul Wahid, Indonesian citizen, post Secretary;

Called as --------------------------------------------------------- applicant V;

6. Small Venture Women's Association (ASPPUK), address at Kavling PTB-DKI, Ruyung Block A-19 No. 29 Pondok Kelapa, East Jakarta 13450, in which case represented by Ramadhaniati, Indonesian citizen, post National Executive Secretary;

Called as ---------------------------------------------------------------------------

Based on the Special Power Letter dated 16 August 2010 gives Power

Special to: 1) Ecoline Situmpersons, S.H.; 2) Janses E. Sihaloho, S.H.;

3) Muhammad Zaimul Umam, S. H, M.H.; 4) M. Taufiqul Mujib, S.H.; 5) Henry

David Oliver Sitorus, S.H.; 6) Ridwan Darmawan, S.H.; 7) Riando Tamstockpile, S.H.;

8) Anton Febrianto, S.H.; 9) B.P. Beni Dikty Sinaga, S.H.; 10) Priadi S.H.; and

11) Ah. Maftuchan, S. Hi.; all are Advocates incorporated in Team Advocacy Reject APBNP 2010 which domiciled law on Jalan Mampang Prapatan XV Number 8A RT 03 RW 04, Kelurahan Tegal Parang, South Jakarta,

both acts Separately or separately;

Next is referred to as ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ The applicant; and

Examinate the written evidence of the applicant;

3

2. SITTING LAWSUIT

[2.1] A draw that the petitioners have applied with

a letter of application dated August 16, 2010, which is then accepted and

on the list in the Constitutional Court (next called Kepaniteraan

Court) on Monday August 16, 2010 at 13:00 WIB

based on the Certificate Receipt of the request file number 482 /PAN.MK/2010,

which was later registered with Perkara Number 57 /PUU-VIII/2010 based on

DEED REGISTRATION CASE NUMBER 483 /PAN.MK/ 2010 on Wednesday date

September 29, 2010 at 13:00 WIB, the request was next

corrected and received in the Court of Justice on October 27, 2010,

outlines the following things as follows.

A. Preliminary

That the Constitution of 1945 provides the mandate that poor facir and abandoned child

borne by the state and state guarantees the fulfilment of fundamental rights

human rights such as decent living, health, social security, and

so on. That one of the country's main objectives is to

improve the welfare of citizens;

That one of the country's instruments to address the problem

is the National Revenue and Shopping Budget (APBN) in the the central level

and the Regional Revenue and Shopping Budget (APBD) at the provincial level and

county/city. But, at least 10 years after the reform, APBN has not yet

siding with the citizens, especially the poor. The APBN shopping priority

has not been reserved for poverty alleviation, empowers citizens

the poor country, or departs access to the poor in order to immediately

be free of its poverty burden;

That in APBNP 2010 for example, the poor does not seem to be the

subject of development. In the laws, two key actors

planning up to the designation of the APBN are the Government and the House. Second

This large institution is also expected to shoulder the effort

in order for APBN to be completely inclined and side with the poor.

The government is a draft of the APBN and implementations in the field

in order for how the draft actually sets out from the real needs

4

society and is hosted by a mechanism that guarantees that

its implementation is not misappropriated. The DPR is an acceptable determinate and

under APBN then the DPR is expected to be more restrictive and critical for

guaranking priority activities the numbers allocated close to

the interests of the poor. With regard to parliamentary functions, especially the Panitia

The budget, there are some hypotheses why the noble role of the defense against

the poor has not been able to max. First, the DPR has a work assignment that

very much but supporting systemis not yet adequate. Second, not

there is a cooperation between the DPR with civil society institutions in

budget discussion. If such civil society could be more

involved, perhaps it could be a temporary alternative to supporting

data and alternatives to the members of the Board, especially those in the Commission

and the Committee Budget. Third, the substance of the poor (poor) as

the approach is still a novelty in the drafting of the budget

country;

That in the 1945 Constitution it is very clear that the facir is poor as

APBN subjects, long ago ignored in Act Number 2 of the Year

2010. It is involved with an unaccommodated budget for assurances

social, health, and injustice in terms of the budget balance between

area and center. Not only that, the drafting process of the a quo

is also a lot of underdeveloped procedures. Whereas, the 1945 Constitution guarantees any

people are entitled to be prosperous born and inner, residence, and

get a good and healthy life environment and entitled to

health care. UUD 1945 also guarantees that everyone is entitled to

a social guarantee that allows for its own development to be intact

as a dignified human being, including making sure that poor facir

and displaced children are maintained by country;

That on the other hand, Act No. 2 of 2010 also contradictory

with Article 22A of the 1945 Constitution that states, " Further provisions

about the system of the way the legislation formation is set up with the invite-

invite ". In fact, the formile process or norm in the Act

Number 2 of the Year 2010 also appears to be out of tune with some of the policies

other related to the economy and budget. Short words, Act

Number 2 of the Year 2010 proved by convincing contradictory to

5

a constitutional mandate that states that the entire national economic system

is used for the greater prosperity of the people;

B. The authority of the Constitutional Court

That test rights according to Prof. Dr. Sri Soemantri in his book "Rights of the Materiil Test

in Indonesia (1997)" are divided into two types, namely formyl test and test rights

materiil. A formyl test right is " the authority to assess, whether

a legislative product, such as legislation, for example, is embalming through the way-

the way (procedure) as it has been determined/set in regulations

laws applicable or not " (page 6). Next is Sri

Soemantri defines the material test right as " the authority to investigate

and then assess, whether a law of its contents

appropriate or contradictory to the rule of the Higher level, and

whether a certain power (verordenende permissions) is entitled to issue

a certain rule " (page 11);

That test rights, both formyl and materiel, are recognized. its presence in the system

the laws of Indonesia as contained in The Constitution

underwent a change of four times, in Article 24 of the paragraph (1) of the Constitution

1945 stating, " The judiciary is done by an

The Supreme Court and the judicial body are in the lower ... and by

a Constitutional Court ". While the set-up of the authorization

test rights of the Act on the Basic Law exists

in Article 24C of the Constitution of 1945 and Article 10 of the paragraph (1) letter of the Act

Number 24 of 2003 on the Constitutional Court, which is further

reads, " Constitutional court authorities prosecute at first level

and last of its verdict is final to test the legislation

against the Basic Law, severing the dispute the institution's authority

the state whose authority is provided by The Basic Law, severing

the dissolution of the political party, and severing disputes about the outcome of the election

general ";

That subsequent Article 10 paragraph (1) of the letter a Act on

Constitutional Court stated that the Constitutional Court is authorized to prosecute

at the first and last degree that the verdict is final to test

6

The Act against the Basic Law of the State of the Republic of Indonesia

In 1945;

That Article 1 of the number 3 Act on the Constitutional Court,

states, " A request is a submitted request. In writing

to the Constitutional Court of testing the legislation against

The Constitution of the Republic of Indonesia in 1945 ";

That other than that, Section 7 of the Law No. 10 Year 2004 about

The creation of the Perundang-Invitation Regulation governs hierarchically

The position of UUD 1945 is higher than the Act, therefore any

the provisions of the Act should not be contrary to the Act

Basic State of the Republic of Indonesia in 1945. If there is a provision in

the Act in conflict with the Constitution of 1945 then provisions

The Act may be directed to be tested through the mechanism

testing the Act in the Constitutional Court;

That under the terms of the Article clear that the Court

The Constitution has the authority to conduct good testing

materiel and formyl, i.e. to conduct a product testing

The Act against The Basic Law of the Republic of Indonesia Year

1945;

C. The Constitutional Rights Position of the Petitioners

That Article 51 of the paragraph (1) of the Constitutional Court

states the applicant is a party that considers the right and/or

of its constitutional authority be harmed by force. The law,

that is:

" The individual citizen of Indonesia; Union unity

The customary law of the rest is still alive and in accordance with

the development of the community and the principle of the Union Nation

Republic of Indonesia that is set in undang; Agency

law public or private; or state agency ".

That in the explanation of Article 51 of the paragraph (1) of the Act on

The Constitutional Court is said to be entitled" rights

7

constitutional " is the rights set out in the Basic Law

The Republic of Indonesia in 1945;

That constitutional right as contained in the Act

Basic Year 1945 among them include the right to obtain certainty

the laws and rights of the work as part of the work as set in Section 27 paragraph (1)

and paragraph (2) as well as Section 28D (1) and paragraph (2) of the Basic Law

1945;

That of the provisions of the That is, there are two conditions that must be met for

testing whether the applicant has legal standing (qualified as

the applicant) in the application of the test of the Act. As for

the first term is the qualifying act as the applicant

as set out in Article 51 of the paragraph (1) of the Act on

The Constitutional Court. The second term is the existence of the applicant ' s loss

the release of the Act (vide of the Constitutional Court Number

133 /PUU-VII/2009);

That the applicant is a private, interested, and

private body.

established on the basis of concern for being able to provide protection and

the enforcement of social justice, law, and human rights, governing

laws and established on a notarized deed;

That though, not all organizations can or could represent

public interest (general), will but only organizations that have met

the terms defined by various Acts or jurisprudence,

that is:

" Form the legal entity; In AD/ART decisively

mentions the organization's established purpose such;

routinely has activities that have been mandated by

AD/ARTITS ".

That in this case the applicant consists of a variety of non-governmental organizations (private bodies) known to have championed human rights

humans, as well as striving for the form of a public life,

A nation and a prosperous, fair, and prosperous country in particular

the state budget field, where it is reflected in AD/ART and

the day-to-day activities of the applicant;

8

That the applicant has obtained a legal status as a legal entity,

as set forth in the Notary Akta. As for the applicant is

as follows:

1. Indonesia Human Rights Committee for Social Justice (IHCS), as

applicant I

That the applicant I was recorded at the Ms. Notary's Acta. Nurul Muslimah Kurniati,

S.H., with Akta 16 dated February 16, 2008;

That in Article 7 of the applicant I mentioned that the organization's objectives

this is:

The organization is tasked to fight for the world. that

peaceful, fair, and prosperous. Removing the global injustice that

is caused by country and capital, a world free of

poverty, hunger, warfare and slavery, as well as free

from neo-colonialism and imperialism. At the national level is

the creation of a democratic state that respects, meets, and

protects human rights as well as to realize social justice for

its citizens. It plays a role in promoting and defending the rights

of human rights and the realization of social justice.

That next in Article 9 it is declared the organization functions:

Defending victims of human rights violations through advocacy

litigation and non litigation. Facilitating victims of rights violations of rights

human rights to transform into rights fighters. Perform

public policy advocacy for creating a country system that

democratic and respectful, as well as fulfilling and protecting the right

of masnage. Perform basic rights fulfillment initiatives

humans, social justice, economic system updates, politics, law

and security, as well as settlement of armed violence conflicts;

(Proof P-1);

That existence Law No. 2 of 2010 on

Change Act No. 47 of 2009 on APBN of the Year

Budget 2010 will perpetuate injustice and violation of rights

human rights protected by law (judicial violence)

9

as a result of the unfairness of the state budget arrangement

as well as not siding with the interests of the Indonesian citizens so

the purpose of the establishment of the Applicant Organization will be impeded;

That with the enactment of Act No. 2 of 2010 on

Changes to the No. 47 Year Act 2009 on APBN

The 2010 Budget Year, the applicant I would have difficulty in

embodied advocacy goals in the field the form of social justice for

citizens of Indonesia;

2. Community initiative for the Welfare and Development Nation

Alternative (PRAKARSA), as the applicant II

That the applicant II is recorded based on the Akta Notary Nurul Larasati, S.H.,

with the Number of Akta 03 on 31 August. 2004 and Akta Number 02

on March 7, 2005;

That in Section 3 of the paragraph (2) Akta Pemapplicant II, it is stated that the purpose

of the establishment of this organization is:

" PRAKARSA's primary purpose is to participate and build and embody

The democratic Indonesian society is fair, and prospered through research

and training as well as through increasing ideas and leadership and

solving problems from non-governmental organizations to the government

and the public " (Proof P-2);

That regarding the functions and efforts of PRAKARSA as

mentioned in the Section 4 of the Acta is:

a. As a support system for the creation of ideas and innovations in

among non-governmental organizations and the social movements of Indonesia;

b. Supporting non-governmental organizations and citizen groups

(citizen groups) Indonesia in obtaining exercise and proficiency

social sciences and thinking about experience and good practices

in the idea and innovations on social change in Indonesia and

outside of Indonesia;

c. Hosting research and training aimed at

increasing capacity and expertise as well as advanced skills

10

to the Ornop leadership and staff in policy and

management;

d. Provides research results relevant to efforts and

non-government organizations working;

e. Provides research networks from internal and external universities

countries relevant to non-governmental research and action programs

The government;

Based on the purpose of the PRAKARSA, then the applicant II becomes

is very interested in applying for a judicial review,

on the grounds that Act Number 2 of the Year 2010 about

Changes to the Act No. 47 of 2009 on APBN

The 2010 Budget Year is is a form of setting

the state budget that does not side with people, so potentially

to block PRAKARSA ' s ultimate goal of participating

and embody the democratic, fair, and prosperous Indonesian society;

3. Indonesia Forum For Budget Transparency (FITRA), as

applicant III

That the applicant III is recorded based on the Akta Notary Henry Siregar, S.H.,

with the Number Acta 6 dated September 20, 2006;

That goal The Indonesian Forum for the Transparency of the Budget

this as stated in the Mukadimah Statute of the applicant III is:

" To guarantee the politics of the pro-people budget with the accountable principle

and The participatory, then transparency becomes a strategy of struggle. On the basis

that, the Indonesian Forum for Budget Transparency (FITRA) was established in

order to demand that people's rights to be involved in all

budgeting process, from the process of drafting, discussion,

implementation of the budget up to its evaluations. FITRA is with all of

People's components build a budget transparency movement up to

The creation of a state budget that meets well-being and justice

the people. The FITRA struggle over the budget is aimed at the fulfillment of rights-

economic, social, cultural and political rights " (Proof P-3);

11

That further in Article 2 of the FITRA Statute is mentioned that the Vision

established by FITRA is "The form of the sovereignty of the people against

budget";

That in Article 3 of the FITRA Statute it is mentioned as well that for

realizing that FITRA is developing the mission:

1. Encouraging transparency and accountability in planning,

the implementation and control of the state budget;

2. Fight for the state budget based and oriented

of the people ' s needs;

3. Be a reference to the discourse and budget transparency movement in and

for Indonesia;

That the nature and purpose of the creation of FITRA as stated in

Article 4 of the Statute is:

(1) The nature of the FITRA organization is inclusive, siding with people, sensitive

gender, and independent;

(2) FITRA aims to realize social transformation towards the

democratic use of the people's sovereignty in the management

sources people ' s lives through the advocacy of transparency

public budgets;

That for reaching its vision, mission, nature and purpose, in Article 5

The FITRA Statute is described about the stategi and FITRA activities including:

(1) The FITRA Strategy is budgeted advocacy;

(2) FITRA activities include:

a. Organization of the people;

b. Education;

c. Kampaye;

d. Research;

e. Policy dialogue;

f. Litigation;

g. Consulting;

h. Legal drafting and counter legal drafting;

12

That based on the above then FITRA is highly

interests in law to submit judicial review against

Act No. 2 of 2010 on Changes to the Invite-

Invite Number 47 of 2009 on APBN Budget Year 2010,

due to the enactering a quo

discriminatory and non-perspective of justice will be very contradictory

with the aim of It's the FITRA. The a quo according to frugality

The applicant III is highly ineligible for the state budget that

meets the welfare and justice of the people, both in terms of transparency

and accountability of planning, and execution of nor budget controls

the country. In addition to the applicant III, the state budget allocation in

The a quo strongly does not side with the needs of the people;

4. Initiative of the Initiative, as the applicant IV

That the applicant IV was recorded based on the Akta Notary Siti Murdiah Mubarik,

S.H. with the Number of Akta 4 dated 09 September 2005;

That under Article 4 of the Applicant Iv, Society It has

intent and purpose:

a. Increase the degree of life of the Indonesian community that

marginally with the nature of open service, alignment of all

parties, responsibilities, gender sensitive, and encouraging party independence

that is served according to needs;

b. Intent and Purpose in this item is achieved by:

-regard for human rights, gender, child, environment, and

related matters;

-progressive principles, i.e. continuously pursuing attainment that

is better and continuity in the strengthening of the local community

autonomous;

-the accessibility principle, which is the ease for all parties to

obtain the Community Service;

-open up to all parties that are in line with And

The purpose of the sorority;

13

-runs an activity corresponding to its competence;

That next in Section 5 Akta The applicant IV is mentioned for

achieves such intent and purpose, the Society performs a variety of

business activities which is not in conflict with the Act,

The applicable Law Regulation, and the intent and purpose of the Society,

among others with:

a. push for public policy reforms that could improve

the life of marginal society;

b. encourage the reinforcement of marginal society to be able to

do/fight for effort activities for improvement of degrees

life;

c. conducting public advocacy and accompanying marginal society

by exalted both;

d. Facilitate network development with other parties that

strategic and in line with intent and purpose as well as business activities

Society (Proof P-4);

That by Doing Act No. 2 of 2010

about Changes to Act No. 47 of 2009 on

APBN Budget Year 2010, then it became important for the applicant IV

to apply judicial review by remembering that

Act a quo potentially obstructing the intent of being founded

Society The initiative, which is "Increses the group life degree

the Indonesian society yanq marginally", as a result of obscurity

the state budget that does not side with marginal society;

5. The Pesantren and Society Development Society (P3M), as the applicant V;

That the applicant V is recorded based on the Akta Notary Nirmawati Marcia,

S.H., with the Akta Number 3 date of 15 July 2003. That the applicant V

is recorded based on the Akta Notary Nirmawati Marcia, S.H., with the Number

Akta 57 dated 16 November 2009. That in Section 5 of the Basic Budget

The applicant V is mentioned that the intent and purpose of this organization is:

14

-Developing Islamic knowledge and thinking on education

and community development;

-Increusing the role of Pondok Pesantren in the building

National in Indonesia in general and Society's development

in particular;

-Developing human resources and natural resources toward

the form of intelligence and the well-being of the inner community

to achieve the happiness of the world and the afterlife;

-Spread Islamic knowledge and thinking about the role and

role as well as public in community development;

That based on that intent and purpose, P3M performs various

business activities that are not in conflict with the Act,

The applicable Law Regulation, and intent and purpose of Society,

among others with:

-The study and research of Islamic, social, and economic issues of education, social, and economic matters, the organization of cooperation with institutions-

institutions or other organizations that have a point and the goal that

is equal and in line with the purpose and purpose of this organization;

-Other productive efforts corresponding to the intent and purpose

Society as well as those that can provide a strong foundation for

set independence (Proof P-5);

That by Doing the Number Act 2 Years 2010

about Changes to the Act No. 47 of 2009 on

APBN Budget Year 2010, then it became important for the applicant V to

apply judicial review by recalling that Invite-

Invite a quo potentially obstructing the intention of the establishment of the Society

Pesantren and Society development, "Increulate the role

Pondok Pesantren in national development in Indonesia at

generally and the community development in particular", as

result of unaligned state budget obscurity

marginalized society;

15

6. The Small Venture Women's Association (ASPPUK)

That the applicant VI is recorded based on the Akta Notary Lilawati, S.H.,

with the Number of Akta 02 dated 07 December 2009;

That in Section 3 of the Applicant Basis VI is mentioned that

the purpose of this organization is:

1. The use of Small Small Business (PUK) movement (PUK)-micro to be capable of

to fight for its rights and interests;

2. Strengthen the position and condition of PUK-micro in access and control

against the economic resources;

3. The capacity of the member Ornop capacity in facilitating movement

PUK-micro;

4. The building of solidarity and cooperation between Ornop, PUK-micro, and

other civil society components to face forms

injustice, especially gender injustice;

That the following in Section 4 is determined. to achieve the goal

that is, then ASPPUK activities include:

1. PUK-micro Assistance by Ornop member;

2. Advocacy of policy to fight for the rights and interests of PUK-

micro;

3. Build and strengthen the market network for PUK-micro products;

4. The increased capacity of Ornop members in advocacy, networking, and

fund raising;

That based on the vision above, this institution performs advocacy and

the distraction to small business women who are victims

human rights violations, including also in terms of doing so

Act No. 2 of 2010 on Changes to the Invite-

Invite Number 47 of 2009 on APBN of Budget Year 2010, which

could potentially violates the rights of the applicant ' s side of the applicant VI,

cause of the a quo is a budget arrangement that does n' t

reflect fairness and reduce the health budget, where

16

women are vulnerable in terms of subtraction

refreshers regarding health assurance (Proof P-6);

That by Doing Act No. 2 of 2010

about the Upper Changes Law No. 47 of 2009 on

APBN of Budget Year 2010, then it became important for the applicant VI

to apply for a judicial review by recalling that

The a quo Act could potentially hinder I mean, the

Association, which is " The position and the condition. Micromicro-in access and

control of economic resources ", as a result of obscurity

state budgets that do not side with marginal society;

D. Legal facts and Analyse of the applicant

1. That on April 3, 2010, the Government filed an APBN bill-

Change of the Year 2010 to the House;

2. That the Government reasoned, accelerated the filing of APBN-P 2010

caused: First, a significant development and change in

various macroeconomic indicators; Second, APBN 2010 was APBN

transition to fill vacancies and keep wheel continuity

governance;

3. That of the seven macroeconomic assumptions made for the reasons for change

APBN 2010, only oil prices sustained deviations increased by 12%

from USD/barrel 65 to USD/barrel 77 (Proof P-7);

4. That the 2010 APBN-P posture also did not undergo a very

very significant change. In addition to the increased deficit, taxation receipts and

Kementrian shopping changes are still below the standard

minimum as a condition of the budget change that can be seen in Nota

Finance RAPBN-P Year 2010 (Evidence P-8);

5. That on May 3, 2010, the House of Representatives meetings passed a bill

on the Change of Law No. 47 of 2009 on APBN

The Year of the Budget 2010. However, the enactment of the 2010 APBN-P bill

leaves an additional budget of Rp 1.1 trillion divided

flat for the 11 Commission commissions for working partners

The Ministry/Institute each Commission. Budget Body