Key Benefits:
VERDICT Number 73 /PUU-VIII/2010
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
[1.1] Which examines, prosecuting, and severing the case constitution on the first and last level, dropping the verdict in the Test application case
Act Number 24 of 2003 on the Constitutional Court and the Invite-
Invite Number 1 Year 1979 on Extradition of the The Basic Law
The State of the Republic of Indonesia in 1945, which was put forward by:
[1.2] Name: POPA NICOLAE;
Place/Date Born: Teoiu-Vilcea Romania, 28 February 1964;
Religion: Kristen;
Work: Wiraswasta;
Citizenship: Romania;
Address: Great Mertha Road Mr. gg. Gedong Sari Number 6,
Kerobokan, Bali.
Based on the Special Power Letter dated October 27, 2010 authorized to authorize
Shanti Dewi, S.H., M.H.; Tumbu Saraswati, S.H., Andrew Simatupang, S.H., Henry
Napitulupu, S.H., Nofia Ridwan, S.H., Lammarasi Sihaloho, S.H., and Fajri Partama,
S.H., Advocate and Legal Counsel of the Law Office Toedjoeh Four & Law firm,
elect of the law domicile at Graha Toedjoeh Four Woltermongosidi Street Number 15
New Kebanyoran, South Jakarta, acts both together and alone-
alone for and on behalf of the power-giver;
Next is referred to as ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Checking the applicant ' s evidence;
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2. SITTING LAWSUIT
[2.1] A draw that the applicant has applied with a letter
an application is dated November 4, 2010, which is then accepted and registered in
The Constitution of the Constitutional Court (subsequently called
on November 15, 2010, registration Perkara Number 73 /PUU-VIII/2010,
which was corrected and accepted in the Court of Justice on the date
December 21, 2010, which is at its point as a following:
INTRODUCTION
1. That the applicant is a Romanian citizen who has settled in
Indonesia since June 11, 2000 to now, with the Card
Ijin Stay Fixed (KITAP) from Ngurah Rai Immigration Office with No.
2D1E1.005-E It took effect until January 18, 2011. Therefore,
The applicant has been 10 (ten) years in residence and residence in
Indonesia. In 2002, the applicant had made a Driver's License
(SIM) and in March 2007, the Police in Bali published a SIM A
with the No. 640216180812 that applies to Popa Nicolae, 28 February
2012, as well as during the Indonesia, the applicant is actively participating in the activities-
social activities and sports organizations in Bali;
2. That on 19 October 2009, the Indonesian Government received the Letter
Interpol Bucharest with No. 9122 /BCF/OMD. Subject requests
search, arrest, and extradition in the name of the applicant;
3. The applicant, on 2 December 2009 at the Grand Hotel
Hyatt Jakarta had been arrested by the Directorate II/ Eksus Barescream Polri
based on the Arrest Warrant Pol SP.Kap/65/XlI/2009/Dit II
Eksus dated 1 December 2009 (vide Evidence P4);
4. Based on the Order of the Detention Order Number pol: SP.Han/
37 /XII/2009/She II Eksus (vide Evidence P-4), dated December 2, 2009,
The applicant has been designated as a suspect and is held in the house
the state prisoner in the Mabes Polri for 20 days from December 3,
2009, until December 22, 2009, for allegedly doing
criminal fraud based on Red Notice from Interpol with Numbers
Letters 2009/29089 and/or misuse of immigration according to
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Act Number 9 of 1992 on Immigration. With no
a temporary restraining request from the Romanian Government;
5. That the Government of Romania submitted an extradition request on behalf of
The applicant to the Indonesian Government with a Letter of Number 414 /PO/XII/
2009/59/08, dated 9 December 2009 and the Embassy Diplomatic Decree
Great Romania Number 1145, dated 14 December 2009 (vide Proof P-5)
which was attached to the Decree of Judge District Court of Bucharest Criminal Devision
II Number 423, dated 20 March 2007 and corroborated by the Decision of Judges
High Court of Justice and Casation Number 2098, dated June 4, 2009 which
stated Popa Nicolae has been sentenced to 15 years in prison;
6. That from 3 December 2009 to this request,
under Article 34 of the letter b and Article 35 of the paragraph (1) the extradition laws, period
The detention of the applicant has been extended by 6 (six) times,
with the sebagal description following (vide Proof P4):
1) Detention by Investigator, dated 3 December 2009 with Surat
Pol number: SP.Han/37/XII/2009/Dit-II-Eksus, since December 3
2009 to December 22, 2009;
2) 1st Extension by the Chairman of the South Jakarta District Court with
Redemption Number 377 /Pen.Pid/2010/PN.Jkt-sel, dated December 16,
2009, from December 23, 2009, to January 21, 2010;
3) The 2nd stand by the Chairman of the South Jakarta District Court with
Redemption Number 377 /Pen.Pid/2010/PN.Jkt-Cell, dated January 21,
2010, from January 22, 2010, to February 20, 2010;
4) The 3rd Extension by the Chairman of the South Jakarta District Court with
The Number of Penetration 377 /Pen.Pid/2010/PN.Jkt-sel, dated 11 February
2010, from 21 February 2010 to 22 March 2010;
5) The 4th was extended by the Chairman of the South Jakarta District Court with
Redemption Number 377 /Pen.Pid/2010/PN.Jkt-sel, dated 15 March
2010, from 22 March 2010 to 21 April 2010;
6) The 5th extension of the South Jakarta State Speaker with
Redemption Number 377 /Pen.Pid/2010/PN.Jkt-sel, dated 15 April 2010,
from April 22, 2010 to May 21, 2010;
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7) The 6th is extended by the Chairman of the South Jakarta District Court with
Redemption Number 377 /Pen.Pid/2010/PN.Jkt-Cell, dated 12 May 2010,
from 22 May 2010 to 20 June 2010.
as well as undergoing detention delivery based on Director II
Special Economy of Police Number SP.Han/37.d/V/2010/Dit II Ekmilk,
dated to 26 Mai 2010 subject to the Detention Warrant
on behalf of Popa Nicolae, from May 26, 2010 to a plea
this is for. This is because the applicant is ill and depressed, then
thus until the request was made, the applicant has
underwent a period of more than 300 (three hundred) days of imprisonment;
7. That the extension of the detention against the applicant is based on
Article 34 of the letter b and Article 35 of the paragraph (1) of the extradition of the Extradition of the Right
The Constitutional Court. Materially, the section, stating
that:
Article 34 The detention ordered under Section 25 is revoked, if:
a. ....dst;
b. has been running for 30 (thirty) days unless extended by
Trial at the Prosecutor's request;
c. ....dst;
Article 35 "(1) The detention term referred to in Article 34 of the letter b any
times can be extended by 30 (thirty) days".
clearly strongly contradictory to the 1945 Constitution. Because of Article 28D the verse (1)
states firmly that each person is entitled to a legal certainty
the fair as well as the same treatment before the law. OIeh is therefore,
then an extension of the detention period that does not have a deadline
for sure, is very contrary to the principle of legal certainty, as
stated in Article 28D of paragraph (1) of the 1945 Constitution. Further, in
exercise this responsibility, the state, especially the government, must
follow the principles of the state of law in accordance with Article 1 of the paragraph (3)
Constitution of 1945;
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8. That the extradition process set out in Article 39 of the paragraph (4) of the extradition laws
harms the constitutional right of the applicant, or at least is potential
will harm the Constitutional right of the applicant. Section 39 paragraph (4) of the Extradition Law,
stating:
"In terms of the extradition request as referred to in paragraph (1)
approved, then the President of the Republic of Justice
Indonesia process more Ianjut as there is an extradition treaty
between the loving state with the State of the Republic of Indonesia";
clearly strongly contradictory to the 1945 Constitution. Because of Article 28D paragraph (1)
states firmly that each person is entitled to a legal certainty
the fair as well as the same treatment before the law. In the absence of
The extradition agreement between the Indonesian Government and the State of the inta,
leads to obscurity over the extradition treaty used
in the Extradition Proceedings against the applicant. Therefore, the process
extradition uncertain, is very contrary to the asas of certainty
the law as stated in Article 28D paragraph (1) of the 1945 Constitution.
Next, in exercising this responsibility, the state, especially
the government, must follow the principles of the state of law in accordance with
Article 1 of the paragraph (3) of the 1945 Constitution;
II. CONSTITUTION OF THE CONSTITUTIONAL COURT
9. That Section 24 paragraph (2) Third Amendment of the Basic Law
Republic of Indonesia in 1945 (subsequently referred to as the Constitution of 1945)
states that the rule of Justice is carried out by a Supreme Court of Justice
The Supreme and the body The judiciary is under it in the environment
General Justice, the Religious Justice Environment, the Military Judicial environment,
the justice environment of the State Order of the State, and by a court
Constitution;
10. That Section 24C paragraph (1) Third Amendment of the Constitution of 1945 juncto Article 10
paragraph (1) Act No. 24 of 2003 on the Constitutional Court
(subsequently referred to as the MK Act) states that the Court
Constitution is authorized To prosecute at the first and last level that
The verdict is final to test the Act against
The Basic Law, severing the Jurisdiction Of The State Agency
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the authority is provided by the Basic Law, severing
the dissolution of the political party and severing disputes about the election result
general;
11. That being the object of this test submission is
The Act, which is Article 51 of the paragraph (1) letter of the MK Act and Article 34 of the letter b,
Article 35 of the paragraph (1), and Section 39 of the paragraph (4) of the Number 1 Year Act
1979 of Extradition (State Gazette of the Republic of Indonesia in 1979
Number 2) which was subsequently conducted testing against the 1945 Constitution;
12. That based on the provisions of the above, because the
is being honed to be tested is the Act against the Constitution of 1945, then
The Constitutional Court is authorized to examine, prosecute, and disconnect
test applications This material.
III. THE LEGAL POSITION AND THE CONSTITUTIONAL INTEREST OF THE APPLICANT
13. That under Article 51 of the paragraph (1) of the letter of an Act MK states,
" The applicant is a party that considers the right and/or authority
its constitutionality is harmed by the enactment of the Act, namely:
a. Individual Citizen of Indonesia;
b. ... dst;
The explanation of the Court Act, Article 51 of the paragraph (1) of the letter a stated, "Which
referred to" constitutional right " is the rights set in
The Constitution of the Republic of the Republic of Indonesia of the Year 1945";
14. That the Constitutional Court in Decree Number 006 /PUU-III/2005 has
provides an explanation of the constitutional rights and disadvantages
the following constitutional constitutional rights:
a. the constitutional right of the applicant given by UUD 1945;
b. that the applicant ' s constitutional right is considered by the applicant to have
harmed by an Act tested;
c. that the intended constitutional loss is specific
(special) and actual or at least potentially a potential that
reasonable reasoning can be certain to occur;
d. Due (causal verband) between the loss and
the enactment of the Act is being asked to be tested;
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e. It is possible that with the request of a request then
the constitutional loss postured will not or no longer occur.
PEMOHON:
15. That the applicant is an individual of the Romanian State that
has settled in Indonesia since June 11, 2000, as well as the applicant has
get the Ijin Card Stay Fixed (KITAP). Accordingly, the applicant
has been 10 (ten) years in residence and residence in Indonesia.
The applicant has been detained since 3 December 2009 and until recently
imposed a detention extension of 6 (six) times related with
an extradition request from the Romanian State against the applicant. The existence of
restrictions on Section 51 of the paragraph (1) of the letter of the MK Act led to the applicant
not being able to apply for testing
Section 34 of the letter b and Article 35 of the paragraph (1) of the extradition Act;
16. That there is a condition, in which the applicant cannot submit
the request only because the applicant is a Foreign Citizen has
deprive the applicant ' s right to be recognized as private in front of the law,
which is one of the unmititable human rights
(non-derogable rights) as guaranteed in Article 28I paragraph (1) of the UUD
1945 and the restriction also led to the loss of the applicant ' s right
to obtain recognition and the same treatment in front of the law,
as stated in Article 28D paragraph (1) of the Constitution 1945;
17. That the Act of Exile is an Act that its conduct is more
addressed to the citizens of the country who have the legal interest
directly to conduct a material test of the extradition laws. By
therefore, in this request, the applicant considers the need to
be conducted a material test of Article 51 of the paragraph (1) of the MK Act because
it is very adverse to the interest of the petitioner's law;
18. That Section 34 of the letter b and Article 35 paragraph (1) Act No. 1
The Year 1979, which governs the extension of the detention period, and
Article 39 of the paragraph (4) of the Number 1 Act of 1979, which set
about the process Extradition, obviously very detriing, rights
the constitutional applicant. With the arrangement of the section,
The detention and extradition proceedings against the applicant are uncertain,
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whereas Article 28D paragraph (1) states it is unequivocal that the certainty
the law is the constitutional right of each person;
19. That thus, the applicant is an aggrieved party of rights
the constitutionality of the enacgging of Article 51 of the paragraph (1) of the letter of MK as well as
Article 34 of the letter b and Article 35 of the paragraph (1) Act No. 1 of I979;
20. That earlier, the Constitutional Court had already rejected
a plea proposed by the Foreign Citizen Applicant (WNA), which
where in the Law of Justice in the Decree Number
2-3/PUU-V/2007 on Testing Law No. 22 of 1997
on Narcotics to the 1945 Constitution, page 368 states:
"To draw that about legal standing (legal standing) the petitioners
WNA in the case of a quo, the court argued as follows:
a. Article 51 of the paragraph (1) of the letter of the MK and its explanation is very firm and
clearly (the expressis verbis) states that the individual is entitled
applying for an Act to test the Constitution of 1945
(which means that having the constitutional right given by
UUD 1945) only WNI, WNA is not entitled to.
b. Not allowing WNA to imply an Act
Republic of Indonesia does not mean WNA does not obtain protection
law according to principle due process of law, in casu in terms of provisions
criminal die in which the applicant may make a legal effort
(legal remedies) of Appeals, Cassation and Review;
c. An explanation of Article 51 of the paragraph (1) of the letter MK on "individual"
includes a group of people who have the same importance
is associated with the sound of Article 51 of the paragraph (1) letter of a " individual citizen
country Indonesia '', so as to further an explanation
Article 51 of the paragraph (1) of the letter a must be read " individuals including the person
has the same interests as Indonesian citizens. With
thus, the WNA applicant does not meet the qualifications as
the provisions of Article 51 of the paragraph (1) letter and explanation, so that
The WNA applicant does not have legal standing (legal standing) In
The case of a quo. "
21. That in consideration of the above laws, in particular the letter b, which
states that the WNA could make a legal effort of appeal,
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cassation, and review, could indeed be done in terms of the provisions
criminal death, since the death criminal is one of the forms of the ident
in the court ruling, but which is necessary Note in the pleas
this is that the subject matter of this request
is the provision of the extradition process set out in Section 34
letter b, Section 35 of the paragraph (1), and Section 39 of the paragraph (4) of the Act. Extradition, not
about the Extradition Court Designation. So both things
are two different things;
22. That the legal effort is appeal, cassation, and review,
is a legal attempt made against the court ruling, rather than
against the actions or processes that took place before the trial.
if the actions or processes that occurred before
the trial is, performed by the authorities because indeed
the rule authorizes such authority, so that it is not possible
carried out the legal effort of the appeal, cassation, and review,
and resistance and prajudiciary. The most likely legal attempt
is to request a test of the a quo.
Therefore, the above Court consideration is highly unlikely if
is used as an excuse to resist Legal standing (legal standing)
The applicant a quo, as well as being very reasonable to state that the applicant
has a legal standing (legal standing) to submit
a application;
IV. THE POINTS REQUEST
23. That which is tested in this request is a material test of Article 51
paragraph (1) of the letter of an Act of MK, Article 34 of the letter b, Article 35 of the paragraph (1), and Article 39
paragraph (4). Act No. 1 of 1979 on Exextradition.
THE REASONS FOR TESTING MATERIAL
24. That Section 51 of the paragraph (1) of the letter of the MK Act states," The applicant is party
that considers the rights and/or its constitutional authority be harmed by
the enactment of the Act, i.e.:
a. individual Citizen of Indonesia;
b. ...dst; "
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A. Article 51 of the paragraph (1) of the letter a bill contradictory with Article 28D of the 1945 Constitution on the Rights of each person to obtain the same recognition and treatment in front of the law.
25. That Article 28D of the Constitution of 1945 stated expressly, ''Everyone is entitled
of fair recognition, protection, and legal certainty as well as
same treatment before the law".
26. That the formulation of the articles in the 1945 Constitution uses phrases that
vary is to indicate the subject's scope of
setting up such articles, among others "Every citizen", "Every
of the citizen", "Every citizen", and "Every person", in which Article
26 UUD 1945 explains the following:
" (1) The people of the country are native Indonesians and
the people of the other people who passed with the Act as
citizens;
(2) Population is an Indonesian citizen and a foreigner who is located
staying in Indonesia;
(3) The things regarding citizens and residents are governed by the invite-
invite. "
Which later, Article 1 of the Number 23 Act 2006
about the Occupation Administration stated, "Population is Citizens
Indonesia State and Foreign Persons residing in Indonesia";
27. That the formulation of Article 28D of the 1945 Constitution, which uses the phrase "Any
people", is interpreted to mean that the treatment of the section includes all of the people in the region of the Indohesia Republic, because of the definition of the phrase
"Every person" is the same as the "population" as
referred to in Article 26 of the paragraph (2) of the 1945 Constitution and Article 1 of the figure 2
Act No. 23 of 2006. Accordingly, the
Article 28D of the 1945 Constitution, not only for Indonesian citizens, but
applies to Foreign Citizens who reside in Indonesia.
This is in line with the opinion of the former Constitutional Judge. -HM. Laica Marzuki
(in Dissenting Opinion Of Number 2-3/PUU-V/2007 on Testing
Act No. 22 of 1997 on Narcotics against
Basic Law of 1945, page 443) stated, "Word" at any time.
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people " in Article 28D paragraph (1) The 1945 Constitution does not simply include citizen
right but is equal right for any person in the Republic region
Indonesia '
28. That Article 51 of the paragraph (1) of the letter of an Act of the MK which restricts the party to
to the Materiel of the materiel test of an Act, especially for the Citizens
Foreign States, is very contrary to Article 28D of the 1945 Constitution. By
due to the provision of the section, Foreign Citizen,
is hindered by its right to submit a material test for the
undang-Undang;
29. That Constitutional Judge H. Harjono in Dissenting Opinion Broke Number
2-3/PUU-V/2007 on Testing Act No. 22 of 1997
about Narcotics to the 1945 Constitution, page 434) stated, "In
relations with the enactment of the Act are distinguished between
The Act is indeed meant to be special to the Citizen
Foreign, the Act that is specifically for the Citizen
Indonesia, and the Act that is reserved for the Citizen
Indonesia and the Foreign Citizen"
30. That Article 1 Extradition Law states, " In this Act
The extradition is a submission by a country to
the country requesting the submission of a disnumerable or convicted person
for committing a crime in outside the country's territory that submitted
and within the jurisdiction of the country's territory requesting that submission
because it is authorized to prosecute and entrust it".
Then given the presence of one of the asas extradition, which is asas not
handing over the citizens, who are poured dalarn Article 7 of the paragraph (1) of the Act
Exextradition, which expressly states, "The request for an extradition against
the citizen of the Republic of Indonesia was rejected."
The conduct of such asas is as the embodiment of the country's obligation to
protect its citizens, in which case it is Indonesian Citizen.
Therefore, it is certain that the Treatment of the Exextradition Act is more
addressed to the Foreign Citizen.
31. That the extradition of the Extradition Bill is more reserved for Citizens
Foreign than for Indonesian Citizens, then it is perfectly natural that
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The extradition of the extradition bill is filed by the Foreign Citizen,
since the Foreign Citizen has legal interest
Iangsung over the enactment of the a quo;
32. That refers to the Court of Justice Law in the Putermination
Number 2-3/PUU-V/2007 on Testing of Act No. 22 Year
1997 on Narcotics against the 1945 Constitution, page 368 stated,
" Draw that about the legal standing of the (legal standing) para
The WNA applicant in the case of a quo, the Court argued as
The following:
a. Article 51 of the paragraph (1) of the letter of the MK and its explanation is very firm and
clearly (the expressis verbis) states that the individual is entitled
applying for an Act to test the Constitution of 1945
(which means that it has a constitutional right given by
UUD 1945) only WNI, WNA is not entitled;
b. Not allowing WNA to imply an Act
The Republic of Indonesia does not mean that the WNA does not acquire
legal protection according to the principle of due process of law, in casu in
terms of the provisions a death criminal in which the applicant can perform
legal efforts (legal remedies) of appeal, cassation, and review
return;
c. An explanation of Article 51 of the paragraph (1) of the letter MK on "individual"
includes a group of people who have the same importance
is associated with the sound of Article 51 of the paragraph (1) letter of a " individual citizen
country Indonesia ", so as to further following the description of the article
51 verses (1) of the letter a must be read" individuals including persons
have the same interests of Indonesian citizens ". With
thus, the WNA applicant does not meet the qualifications as
the provisions of Article 51 of the paragraph (1) letter and explanation, so that
The WNA applicant does not have legal standing (legal standing)
in the case of a quo. "
33. That the above legal considerations are highly unlikely that
is used as an excuse to deny legal standing the applicant a quo,
because of the section in the test in the request of Number 2-3/PUU-V/2007
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with the a quo petition has the difference in stages
procedural, i.e. stage of the ruling and the investigation stage;
34. That in the above legal considerations, in particular the letter b, which
states that the WNA could make a legal effort of appeal,
the casings, and the review, could indeed be done in terms of the provisions
the criminal is dead, because The death penalty is one of the forms of view
in the Court Termination, but which needs to be noticed in
This application is that which is the subject matter of
This request is a provision regarding the process The extradition set
in Article 34 of the letter b, Article 35 of the paragraph (1), and Article 39 of the paragraph (4)
Extradition Laws, not to establish the Extradition Court Designation, so
The two things are two different things;
35. That absence of unrestricted detention and execution of an extradition process
with no legal certainty occurred on the applicant, not
occurring due to the misapplication of the law by the apparatus (investigators and
prosecutors), but because it is expressly set out in Article 34 of the letter b,
Article 35 of the paragraph (1), and Article 39 of the paragraph (4) of the Extradition Laws. This indicates
that it is true that it is the truth that authorized the apparatus
to perform acts that are in violation of human rights;
36. That against the indefinitely detention of Article 34
letter b and Article 35 of the paragraph (1) Extradition Laws cannot be made an effort
Prajudicial law, because of Article 1 of 10 and Section 77 of the KUHAP
stated, "Prejudicial is the authority of the state court for
check and disconnect according to the way set in the Act
this, about:
a. lawful or illegal arrest or arrest of
request a suspect or her family or any other party to the power
suspect;
b. lawful or termination of prosecution or termination of prosecution
upon request for the sake of law and justice;
c. Request for damages or rehabilitation by a suspect or
his family or The other side of the power is not
submitted to the court".
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Where the substance of its description is more to whether detention
is done as per provision or not, whereas if connected to
Article 34 of the letter b and Article 35 of the paragraph (1) the extradition laws, then the Prajudiciary
cannot be used as a "legal attempt" over detention without limit
time against the applicant. Therefore, there is no possible attempt
the laws against the actions committed under the Act,
in addition to requests for testing of the
Act;
37. That based on the above reasons, it is very reasonable for
The applicant to say that in the presence of Article 51 of the paragraph (1) of the letter a
MK Act, the Foreign Citizen becomes a no-chance for
to fight for the cause. His legal interests While the right to obtain
the same recognition and treatment in front of the law, it is the right
constitutional granted by the Constitution of 1945 to any person who
resides in the Republic of Indonesia, including the Citizen of the Republic of Indonesia. Foreign Country;
B. Article 51 of the paragraph (1) of the letter of the MK contradictory Article 28I paragraph (1) of the Constitution of 1945 on the right to be recognized as personal in front of the law, which is one of the non-derogable rights of human rights
38. That Article 28I paragraph (1) of the MID 1945 states:
"The right to life, the right to not be tortured, the right to freedom of mind and heart
conscience, religious right, right to not be enslaved, the right to be recognized as
private in the face of the law, and the right not to be prosecuted on the basis of the law
the prevailing ebb is human rights that cannot be deductable
dalarn any circumstances";
39. That the right to be recognized as a person before the law is the right
human rights that cannot be reduced under any circumstances (non-
derogable right);
This is in accordance with Article 16 International Covenan on Civil and Political
Rights (ICCPR) (vide Evidence P-4) that states, "Everyone shall have the
rights to recognition everywhere as person before the law". Where the words
"everyone" and "everywhere" are an affirmation that the right to
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recognized as personal in front of the law is applicable to all humans,
wherever the human is located;
40. That Indonesia has ratified the ICCPR Act
No. 12 of 2005 on the Ratification of ICCPR, which means that
Indonesia must comply with and carry out any of the provisions set
in the ICCPR, as mentioned in Article 2 of the paragraph (1)
ICCPR that states, " each State Party to the present Covenant
undertakes to respect and to ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the present Covenant,
without Distinction of any kind, such as race, colour, colour, sex, language, religion,
Political or other opinion, national or social origin, property, birth or other
status";
41. That Section 51 of the paragraph (1) letter of an Act of MK restricting the Citizen
Foreign to apply for a material test against an
Act, a form of "default" performed by
of the State of Indonesia above its obligation to comply and implement
the provisions set out in Article 16 of the ICCPR and Article 28I paragraph (1)
Constitution of 1945, i.e., about the right to be recognized as private in the presence of the law
Moreover that right in Article 28I verse (1) of the 1945 Constitution, including
in a right that cannot be reduced under any circumstances. Because
that should be a material test of Article 51 of the paragraph (1) letter a
The MK bill or at least did the extension of meaning to the provisions
section;
C. The authority of the extension of the Detention contained in Article 34 of the letter b and Article 35 of the paragraph (1) of the No. 1 Act of 1979 contradictory Article 1 of the Constitution (3) of the Basic Law of 1945 on the State of the Law (Rechtstaat)
42. That Section 34 of the letter b and Article 35 paragraph (1) Act No. 1
The Year 1979 reads:
Article 34 " Detention ordered under Section 25 is revoked, if:
a. ...dst;
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b. has been running salama 30 (thirty) days unless extended by
The court at the Prosecutor's request;
c. ...dst; "
Article 35 " (1) The detention term referred to in Article 34 of the letter b any
times can be extended by 30 (thirty) days".
43. That Article 1 paragraph (3) of the 1945 Constitution states, "The country of Indonesia is
the law state";
44. That Prof. DR. Jimly Asshidiqie, S.H. mentions there are 13 (thirteen)
principal principles that are the main pillars that buffer the standing
the pressure of a modern state, so it can be called the State
Law (The Rule of Law or Rechtstaat) in the true sense, in
of which is the deep Human Rights protection principle
the explanation states, " ...Every human being since his birth
bears the rights and Liabilities are babas and
The formation of the state and thus the holding of power
a country should not reduce the meaning or meaning of freedom of rights
the humanitarian of that. Therefore, the presence of protection and respect
against human rights is a very important pillar
in each country referred to as a legal state. If in a
country, human rights are ignored or violated on purpose and
The suffering it has not been able to resolve is fair, then
the country in question cannot be called as a legal state in
The true meaning".
(Prof. -DR. Jimly Asshidiqie, S.H.; Constitutional Court and State
Law: Reflections on the Implementation of Justice Act Post Amendment
The Basic Law of the State of the Republic of Indonesia Year 1945, matter. 15).
Source: http://www. Pemantauperadilan.com/opini/30.Mahkamah
% 20Konstitusi%20Dan%20Cita%20Countries %20Hukum%20Indonesia.pdf
The opinion of the former Justice of the Constitution clearly states the need for
protection and recognition of human rights by a country, For the country
it may be referred to as a legal state. Therefore, Indonesia
which is expressly in Article 1 of Article 1 (3) of the 1945 Constitution declares Indonesia
17
as a legal state, it is already supposed to provide protection and
recognition of the rights of any person in the State region
Indonesia;
45. That Article 34 of the Extradition Statute states that
the Attorney's authority to extend the term of imprisonment, of course
potentially the misuse of the authority of the power. In advance
if it refers to Article 36 of the paragraph (2) of the extradition Law which states,
"The President who decides to allow someone in extradition", not
is not possible if an extradition time is made as a means of politics.
If this happens, then what happens next is Indonesia
will be a power state (Machtstaat) and not the State of the Law,
as stated in Article 1 of the paragraph (3) of the 1945 Constitution;
46. That Article 35 paragraph (1) of the extradition Act allows it to do
an extension of a clear and definite detention period
strongly violates the principle of human rights protection, which is
one of the principles legal state;
47. That then, if associated with Article 35 of the paragraph (2) of the Extradition Law,
which mentions the reasons for the extension of the detention period,
as follows:
a. No court has been found on the request for an extradition request;
b. required information by the Minister of Justice as intended
in Article 36 of the paragraph (3);
c. extradition was requested by another country and the President has not given
his decision;
d. the extradition request was granted, but could not be implemented yet,
indicating that the desired by Law No. 1 Year
1979 is more aimed at the effectiveness of the extradition process rather than efficiency
process Extradition. In His Paper, Prof. DR. Romli Atmasasmita
stated, " Both extradition models each have
a certain weakness and legal power. First model, interested
extradition process efficiency issues by entering the interest of rights
is suspect/penalized as a key part of the process
extradition, i.e. by placing Suspect/convict as
18
"legal subjects", and state are only facilitators against the process
esktradition solely.
Whereas the second model, concerned the effectiveness of the extradition process with
"ignores" the criminal rights of the criminal/convict, that is
by placing the suspect/convict as the "object" of
An extradition process. The first model, the final decision-taker in
the extradition process is on the Court's termination; while the second model,
The final decision-taker in the extradition process is the President
as head of state. Politically, the first model has a position that
favors a country, in a sense that it would not be vulnerable to
the political pressure of another country, while the second model is the opposite. With
other words, the first model, very relevant and in line with
the development of the modern law of the 21st century primarily the protection of fundamental rights
humans and upholding the supremacy of law and the principle of "state-sovereignity".
While the second model, it is not in line with the development of the law
the modern 21st century and is vulnerable to rights violations
suspects/convicted, and weakages the supremacy of law as well as
reinforcement of the principle "state sovereignty."
(delivered in a seminar a day, "The passage of Change Act
Number 1 of 1979 on Extradition" organized by
The Attorney General of the Republic of Indonesia, dated 27 November 2007 in Jakarta)
Source:http://www.legalitas.org/?q=node/369;
48. That application of the second model in the extradition process in Indonesia, is seen
is clear in Article 36 of the (2) extradition laws, which states, "Upon
accept the court designation as well as the considerations that
referred to in paragraph (1), then the President decides to be at least
a person is expropriated'';
Then is determined in paragraph 7 of the extradition General Act of 7 Extradition,
that stated, "The decision on request extradition is not
judicative body decision but is executive body decision, by
for that at the end of the tarf located in the President's hands, after
can the juridical advice from the Minister of Justice on assignment
the court'';
19
If connected to the description of Prof. DR. Romli Atmasasmita above,
then an extradition process in Indonesia that prioritised effectiveness, could
be sure to be a process that ignores human rights and by
because of that, then the extension of the detention period and the The reason for extension
The detention as mentioned in Article 34 of the letter b and Article 35 of the paragraph (1)
Act Number 1 of 1979, can be certain contrary to
one of the principles of the state of law, that is the principle Human Rights Protection.
This means, contrary to Article 1 of the paragraph (3) UUD 1945;
D. The extension of the Detention period contained in Article 34 of the letter b and Article 35 of the paragraph (1) of Act No. 1 of 1979 contradictory to Article 28D of the paragraph (1) of the 1945 Constitution
49. That Section 34 of the letter b and Article 35 of the paragraph (1) of the Extradition Law, which govern
about the extension of the detention period, do not provide an explanation that
is clear and certain about the extension limits of the term that can
be imposed on against someone who is undergoing an extradition process. This is certainly
contrary to the principle of legal certainty mandated in
Article 28D paragraph (1) of the 1945 Constitution, which states, "Everyone is entitled to
warranty of assurance, protection, and fair legal certainty. and
equal treatment before the law'';
Asas this legal certainty needs to be held in high regard of Indonesia as
the legal state, as expressly stated in Article 1 of the paragraph (3)
Constitution of 1945;
50. That the vagueness and uncertainty of the law and the Pasai 34 letters b and
Article 35 of the paragraph (1) of the extradition laws, are evident in the General Explanation and
The explanation of Article 34 of the letter of the extradition Act. In paragraph 10
The General Description is said that, "Regarding containment applies
the provisions in the Indonesian Criminal Events Law", and then in
The explanation of Article 34 of the letter b, it is mentioned that, "Detention during 30 (three
s) the day in sub b includes detention by the Police
Republic of Indonesia and detention by the Prosecutor in accordance with Law
The Indonesian Criminal Event. If required, the Prosecutor may request
the extension to the Adiian. This is the exception of
20
The Criminal Event Law (lex specialis), given that the issue of extradition
must be resolved quickly";
This gives rise to the vagueness and uncertainty of the hukurn, because for
the same process is enacted two provisions at once. First, is
a provision in the KUHAP; and Second, is a provision in the Exextradition Act
itself. Then what conditions should be used? The absence of
this kind of certainty that ends the right
legal certainty, as stated Article 28D paragraph (1) of the 1945 Constitution;
51. That the phrase "extradition issue must be resolved quickly"
raises an issue of its own. This is important, because
every process or regulation has different sizes and criteria-
differs from the word "fast". For example and comparison, we can
refer to multiple Acts, e.g. Act
Number 2 of 2004 on the Settlement of Relationship Disputes
Industrial, for inspection quickly set up In
Section 98 of the paragraph (2), which states, "Within a period of 7 (seven) business days
upon receiving the request as contemplative in paragraph (1),
The Chairman of the State Court issued the assignment on Granted or
not to be granted such plea";as for the Law Number 51 of the Year 2009 juncto Invite-
Invite Number 5 Year 1986 about the Judicial Governance Act,
the examination of the event was quickly set up firmly in Article 98 of the paragraph (2), which
stated, "The chairman of the Court in the term of fourteen days after
received a plea as in the intent of paragraph (1)
issuing the assignment about being granted or not granted
such request ";
Then what is the issue of" extradition issue must be resolved
quickly " according to the explanation of the Article 34 of the letter b? What is the limit
"must be resolved quickly"?
The absence of clarity and certainty is what then should
straighten out, because the result is unclear and does not necessarily set about
extradition proceedings, would not want to have an effect on the non
21
The legal uncertainty over a detention period must be led by a person
which will be extradited;
52. That there is no time limit on extradition proceedings,
a lighter in the extradition proceedings against Robert James McNeice,
a New Zealand Citizen held since August 15, 2008
to April 23 2010 or for a total of 600 (six hundred) days;
53. That is the duration of the incarceration period
South Jakarta District Court No. 01 /PID/C. /2009/PN.Jkt.Sel.,
on 23 July 2009 that set (vide Evidence P-8):
1. Grant an extradition request from a Public Prosecutor;
2. Establish the extradition of Robert James Mc Neice aka Robert Mc
Neice aka Mc NEICE can be extradited to Australia;
3. Stating the documents delivered by the Government
Australia is handed back to the Minister of Law and Human Rights;
4. Establishing a ldentity card on behalf of Robert James Mc Neice alias
Robert Mc Neice aka Mc Neice is kept by the Attorney General
up until the President's Decision on request
extradition is complete;
5. Assigning the extradition request remains withheld until
the Presidential Decree on the request of this extradition;
6. Charge a case against a country of zero; "
Where the result of no definite deadline for
is the President's Decision and plus the provisions of the Article
34 letter b and the Article 35 paragraph (1) of the Extradition Law authoring
to the Prosecutor to always request an extension of the detention period, then
the more uncertainty adds to the duration of the detention period;
54. That in the absence of any legal certainty in the provisions of Article 34
letter b and Article 35 of the paragraph (1) Act No. 1 of I979 then
clearly the provisions of this section are in conflict with Article 28D
paragraph (1) of the 1945 Constitution;
E. The provisions of the detention period and extension of the detention period as governed by Article 34 of the letter b and Article 35 of the paragraph (1) The No. 1 Act of 1979 have been replaced with
22
Conditions in Law No. 8 of the Year 1981 on Criminal Event Law (KUHAP)
55. That the provisions of Section 34 of the letter b and Article 35 of the extradition Act have
in common with the provisions of Section 83C paragraph (4) HIR stating,
'' Unless in the case specified in Section 83J of the paragraph (2), then the command
referred to in this first paragraph may not be valid for longer than
thirty days, counting from the day the command is executed. During
the check has not been exhausted then the prosecution's demands may be
extended by the State Court Chair, each time with thirty
days, if after the connection is out of it. It needs to be
by the Chairman of the Court";
In its explanation it is mentioned that:
"It is listed as follows: according to Section 72 and Section 65 of the detention
only for 20 days only. According to the paragraph (1) of this Section 83 of the letter c, then
if the case is being examined could not be faced
the court is 20 days long, then the Chief Prosecutor or Prosecutor
can give order to keep the suspect in custody continuing, and continuity
This detention applies no longer than 30 days (restraining order
model S. I). At the prosecution of the Attorney General or the 30-day Attorney for the 30-day time it could
be struck by the Chairman of the State Court, each time with 30 days (letter
order restraining order S. VI)"
Which at the time was formed and The Law Number
1 Year 1979, HIR still applies as a guideline in event law,
but currently the provisions of the HIR relating to Criminal Events Law
have been abolished and replaced with the Act No. 8 Year
1981 on Criminal Event Law (KUHAP);
56. That Section 284 paragraph (2) of the (2) KUHAP states, "Within two years
after this Act is promulred, then against all matters
applies the provisions of this Act, with the exception of
while regarding special criminal events as such in
The specific Act, until there is a change and or otherwise is not
applies again".
23
In the explanation of Article 284 of the paragraph (2) of the KUHAP is limitatively determining the subject
referred to as "special provisions of the criminal event" and expressed as
following:
" In question with special provisions of the criminal event as such
on the particular Act is a special provision of the criminal event as the
following:
1. Legislation on Shrinkage, Prosecution And Judicial Conduct
The Economic Criminal (Act Number 7 Drt Year 1955);
2. The Law on the Eradication Of Criminal Corruption (Invite-
Invite Number 3 Of 1971). With a record that all provisions
special criminal events as such on the specified Act
will be reviewed, altered or revoked in a short time-
in short. "
By the Act No. 1 Year 1979 is not included in
"special provisions of criminal events" which are the exceptions and Section 284
paragraph (2) KUHAP, then automatically the provisions in
Act Number 1 of 1979 relating to the law of the event,
enforced the provisions set out in the KUHAP.
57. That in paragraph 9 and paragraph 10 of the General Explanation of the Extradition Laws
states, "If there are urgent reasons, before
extradition requests are filed, officials in Indonesia can
detain while the person is wanted for the country's love
the requested ";
Regarding the containment is applicable in the Criminal Event Law
Indonesia. If a sufficient time for an extradition request
is not submitted, then the person is released";
It is assertive that the containment procedure in the extradition process
is by guideline on the provisions set in the KUHAP. By
therefore, the containment mechanism set up in Act Number
1 Year 1979 on extradition was removed and replaced with
the containment mechanism that has been set up in Act No. 8
Year 1981 on the Law of Criminal Events (KUHAP).
24
F. The provisions of the process of implementation of the extradition as governed by Article 39 paragraph (4) of Act No. 1 of 1979 contradictory Article 28D paragraph (1) of the Constitution of 1945
58. That Article 39 paragraph (4) of the Law No. 1 of 1979 states,
"In terms of the extradition request as referred to in paragraph (1)
approved, then the President ordered the Minister of Justice of the Republic
Indonesia processes further as there is an extradition treaty
between the requested country with the State of the Republic of Indonesia";
59. That "as with the extradition treaty", raises an
confusion if between the State of Israel and the Government of Indonesia
there has been no extradition treaty, so it must follow the process as
is set in an existing extradition treaty, an extradition treaty
Which is it to use?
60. That up to this point, Indonesia has had an extradition treaty with
7 (seven) States, namely (vide Evidence P-9):
1) Malaysia, ratified with Act No. 9 of 1974;
2) Philipina, ratified with Uncling Number 10 Year 1976;
3) Thailand, ratified by Act No. 2 of 1978;
4) Australia, ratified by Act No. 8 of 1994;
5) Hong Kong, ratified by Act No. 1 2001;
6) Republic of Korea, ratified with Act No. 42 of the Year
2007; and
7) Singapore, it has not been ratified.
61. That each extradition treaty, has a set up about
a different extradition process. For example, in an extradition agreement
between the Government with the Government of Malaysia, there is a provision that
states,
Article 11
Simplified
When a person sought advises a court or other competent authorities of the
Requested Party that the person consents to an order for example being
25
made, the Requested Party shall take all necessary measures to expedite the
expectations to the extent permitted under its laws. "
Then in an extradition treaty between the Government with the Government
Thailand that states,
Article 13
Procedure
The procedure with regard to extraclition and provisional arrest of the person
requested to be extradited shall be governed by the law of the law
requested Party.
Where both the extradition treaty states clearly and
it is certain that the extradition process was carried out with the provisions of the state requested.
It will be, however, not found in the extradition treaty
between the Government of Indonesia with the Australian Government set in
the extradition treaty between the Government of Indonesia with the Government
Australia is only a matter of inclusion of the stated document
as following:
Article 11
Procedure Procedure and Required Documents
1. A request for goods shall be made in writing and shall be
requests through the diplomatic channel. All documents online
support of a request for authentication shall be authenticated in accordance
with Article 13.
2. The request for free shall be accompanied :
(a). ...dst;
(b). ... dst;
(c). ... dst;
(d). ... dst;
(e). ... dst;
(f). ... dst;
3. To the extent permitted by the law of the Requested State, please
be granted of a person pursuant to the provisions of this Treaty
nottes that the requirements of paragraph 1 and paragraph 2 of
26
this Article have not been complied with provided that the person sought
consents to an over for his personal being made.
4. The documents include in support of a request for release shall be
accompanied by a translation into the language of the Requested State. "
62. That in some extradition treaties that have been ratified by
Indonesia, there are expressly set about the length of time
temporary detention, but the duration of the duration of the detention period
while in each The extradition treaty is different,
-for example:
-The Indonesia-Malaysia extradition treaty, temporary detention
is conducted for a term of 20 (twenty) days;
-. Phillipina, temporary detention performed
for a period of 20 (twenty) days;
-. Indonesia-Thailand extradition treaty, temporary detention
done for a term of 20 (twenty) days;
-. The Indonesia-Australia extradition treaty, temporary detention
is conducted for a period of 45 (forty-five) days;
-. Indonesia-Republic of Korea extradition treaty, temporary detention
carried out for a period of 45 (forty-five) days.
and then Model Treaty On Extradition by resolution Assembly
UN General Number 45/116, dated 14 December 1990 which stated
that The duration of the temporary incarceration should not be more than 40 (four
days), as well as European Convention On Extradition (Proof of P-10), which
in this case has been ratified by Romania in 1997, as well
stated that temporary detention should not be more than 40 (four
down) days. This suggests that there is no legal certainty
regarding the length of the temporary detention period;
63. That with the difference in setting extradition proceedings in
each extradition treaty, there is an uncertainty of uncertainty
the law against an extradition process that is not based on the agreement
extradition. Because it becomes unclear and uncertain about the agreement
extradition that will be made a guideline in the process;
64. That there is a provision in the extradition treaty stating to
using the provision of the state requested, in this case Indonesia, then
27
will surely return to the provisions of Article 39 of the paragraph (4)
The Number 1 Act of 1979 is increasingly assertive
the obscurity and uncertainty of the rules regarding the process extradition;
65. That in the absence of any legal certainty in the provisions of Article 39
paragraph (4) of the Law No. 1 of 1979, then clearly the provisions
The article is contrary to Article 28D of paragraph (1) of the 1945 Constitution.
V. PETITUM
Based on those things above, we please to the Constitutional Court
to check and cut the appeal of this Act
as follows:
1. Accept and grant the entire request of the Act
The applicant;
2. Article 51 paragraph (1) of the letter of Law Number 24 of 2003
on the Constitutional Court contradictory to the 1945 Constitution, in particular
Article 28D and 28I paragraph (1) of the 1945 Constitution;
3. Article 51 paragraph (1) of the letter of Law Number 24 of 2003
on the Constitutional Court has no legal force
binding with all due to its law;
4. Article 34 of the letter b, Article 35 of the paragraph (1), and Article 39 of the paragraph (4)
The Number 1 Act of 1979 on Extradition contradictory to
the Constitution of 1945, in particular Article 1 of the paragraph (3) and Article 28D paragraph (1) of the 1945 Constitution;
5. Article 34 of the letter b, Article 35 of the paragraph (1), and Article 39 of the paragraph (4)
The Number 1 Act of 1979 on Extradition does not have
a legal force binding with all due to its law;
6. Ordering a loading of this disconnect in the Republic News of the Republic
Indonesia.
Or if the Assembly of Justice of the Constitution argues otherwise, please a fair ruling-
be fair (Ex Aequo et Bono)
[2.2] Draw that to strengthen the control, the applicant has
submitted the written evidence which is given the Proof of P-1 to the Evidence P-9,
as follows:
28
1. Proof of P-1: Photocopy Act No. 24 of 2003 on
Constitutional Court;
2. Proof P-2: Photocopy Act No. 1 of 1979 on
extradition;
3. Evidence P-3: Photocopy of the SP.Kap/65/XII/2009/Dit II Eksus Police;
4. Evidence P-4: Photocopy of the SP.Han/37/XII/2009/Dit II Eksus Police Number;
5. Evidence P-5: Photocopy Letter Number 414/PO/XII/2009/59/08, dated 9
December 2009 and Embassy Diplomatic Memorandum
Romania Number 1145 dated 14 December 2009;
6. Evidence P-6: Photocopy State Court Redemption Number
377 /Pen.Pid/2010/PN.Jkt-Sel;
7. Proof P-7: Photocopy International Covenan on Civil and Political Right
(ICCPR);
8. Evidence P-8: Photocopy of the South Jakarta State Court
No. 01 /PID/C. /2009/PN.Jkt.sel, July 23, 2009;
9. Evidence of p-9: Photocopy of the extradition treaty between Indonesia and
Malaysia, Philipina, Thailand, Australia, Hong Kong and
Republic of Korea.
10. Proof P-10: Photocopy United Nations Model Treaty on Yang.
[2.4] weighed that in order to shorten the description in this ruling, all
something that happened at the trial was appointed in the news of the event of the trial, and
is one entity that cannot be separated by this Termination;
3. LEGAL CONSIDERATIONS
[3.1] Draw that the intent and purpose of the plea is testing
Article 51 of the paragraph (1) Act No. 24 of 2003 on the Court
Constitution (State Sheet of the Republic of Indonesia of 2003 Number 98, Additional
sheet of state of the Republic of Indonesia Number 4316, subsequently called Act MK) and
Article 34 of the letter b, Article 35 paragraph (1) and Article 39 of the paragraph (4) Act Number 1
Year 1979 on Extradition (Republican Page Sheet Indonesia In 1982
Number 2, Additional Sheet Republic Of Indonesia Number 3130, next
called Act 1/1979) against the Basic Law of the State of the Republic of Indonesia
In 1945 (subsequently called UUD 1945);
29
[3.2] weighed that before assessing the subject matter, the Constitutional Court
The Constitution (subsequently called the Court) would first consider
two things, that is:
1. The Court's authority to examine, prosecute, and disconnect
plea a quo;
2. Legal standing (legal standing) Applicant, specifically legal standing citizens
foreign country (WNA) to plead for Act against UUD
1945;
Against these two things, the Court argued as a the following:
The Court's authority
[3.3] weighing that one of the Court's authority under
Article 24C paragraph (1) of the 1945 Constitution and Article 10 of the paragraph (1) letter a Law Number 24
Year 2003 on the Court Constitution (State Of The Republic Of Indonesia
Year 2003 Number 98, Extra Sheet) Republic of Indonesia Number 4316,
subsequently called Act MK) juncto Article 29 paragraph (1) letter a Law Number 48
Year 2009 on the Power of Justice (State Sheet of the Republic of Indonesia
Year 2009 Number 157, The Republic of Indonesia's Republic of Indonesia Number
5076) is to test the Act against the Basic Law;
[3.4] Draws That a quo is about testing
Act in casu UU 24/2003 and Act 1/1979 against UUD 1945, so
The court of authority for examine, prosecute, and disconnect a quo;
Legal Occupation (legal standing) the applicant
[3.5] Draws That Under The Provisions Of Article 51 Paragraph (1) MK Act and
the explanation, which may apply An Act
against the Constitution of 1945 is a party that considers the right and/or authority
its constitutionality is harmed by the enactment of the Act, namely:
a. Individuals (including groups of people who have the same interests) citizens
Indonesia;
b. the unity of the indigenous law society as long as it is alive and in accordance with
the development of the society and the principle of the Republic of the Republic of Indonesia which
is set in undang-Undang;
c. public or private legal entities; or
30
d. country agencies;
[3.6] Draws That due to the applicant, Popa Nicolae, is a citizen
Romanian state, not a citizen of Indonesia then the Court first
considering legal position (legal standing) The applicant to
apply for an Act testing against the Constitution of 1945;
Draw that about the legal position (legal standing)
The applicant, the Court refers to Article 51 of the paragraph (1) letter of the MK Act
stated, " The applicant is a party that considers the rights and/or authority
its constitutionality is harmed by the enactment of the Act, i.e.
a. Individual citizen of Indonesia;
b. the unity of the indigenous law society as long as it is still alive and in accordance with
The development of the community and the principle of the Republic of the Republic of Indonesia which
is set in Undang-Undang;
c. public legal entity or Private; or
d. country's institutions";
which was later upheld in the Decree No. 2-3/PUU-V/2007,
on October 30, 2007, among others considered:
"a. Article 51 of the paragraph (1) the letter of the MK and its explanation is very clear and clear
(expressis verbis) states that the individual is entitled to apply
the application of the Act to the Constitution of 1945 (which means "
has the constitutional right granted by UUD 1945) only Citizens
The State of Indonesia (WNI) while Foreign Citizen (WNA) is not entitled;
b. Not allowing WNA to imply a Republican Act
Indonesia does not mean that the WNA does not obtain legal protection
according to the principle of due process of law ... ;
c. Explanation of Article 51 of Article 51 (1) of the letter MK on "individuals" including
group of people who have the same interest should be attributed
with Article 51 of the letter (1) letter of the MK Act, " the individual citizen
Indonesia ", so as to further following the explanation of Article 51 of the paragraph (1)
letter a bill MK must be read," individuals include persons
of the same interests of Indonesian citizens ". As such, the applicant
as a foreign citizen (WNA) did not meet the qualifications as
the provisions of Article 51 of the paragraph (1) of the MK Act and its Explanation, so
31
The applicant as a foreign citizen (WNA) does not have a position
law (legal standing) in the case of a quo; "
[3.7] Draws that the Court remain in opinion that the citizens country
foreign, like the applicant in the a quo plea, does not have a position
law (legal standing) to apply for testing the Act
against the 1945 Constitution;
[3.8] It is weighed that by because the applicant does not have a position
law (legal standing) for apply for a quo, then subject
requests are not considered;
4. KONKLUSI
Based on the assessment of the facts and laws above,
The court concluded:
[4.1] The court is authorized to examine, prosecute, and cut the plea
a quo;
[4.2] The applicant has no legal standing (legal standing) to submit
a request for a quo;
[4.3] The application is not considered.
By the basis of the Constitution of the Republic of the Republic of State Indonesia
Year 1945 and recalling the Law Number 24 Year 2003 concerning
Constitutional Court (sheet state of the Republic of Indonesia 2003 No. 98,
Additional Gazette Republic of Indonesia Number 4316), and Act
Number 48 Year 2009 on the Power of Justice (Republican Gazette)
Indonesia Year 2009 Number 157, Additional Gazette of the Republic of Indonesia
No. 5076).
5. AMAR RULING
Prosecuting,
Declaring the applicant is not acceptable.
So it was decided at a Consultative Meeting which
attended by eight of the Judges of the Constitution of us, Moh. Mahfud MD, as Chairman
32
Merge Members, Achmad Sodiki, Muhammad Alim, M. Akil Mochtar, Hamdan
Zoelva, Maria Farida Indrati, Ahmad Fadlil Sumadi and Harjono, respectively
as Members on Wednesday the date Twenty-three February of the year two
thousand eleven, and spoken in the Plenary Session of the Constitutional Court open
to the public on Monday the twenty-eighth February year two
thousand eleven by seven Judges Constitution, that is Moh. Mahfud MD, as Chairman
arrested Member, Achmad Sodiki, Muhammad Alim, M. Akil Mochtar, Hamdan
Zoelva, Maria Farida Indrati, and Ahmad Fadlil Sumadi, respectively as
Members, with assisted by Eddy Purwanto as the Substitute Panitera, attended
by the applicant/its ruler, the Government or the representing, and the House of Representatives
People or represent.
CHAIRMAN,
ttd.
Moh. Mahfud MD
MEMBERS,
ttd. ttd.
Acmad Sodiki Muhammad Alim
ttd. ttd.
HM. Akil Mochtar Hamdan Zoelva
ttd. ttd.
Maria Farida Indrati Ahmad Fadlil Sumadi
PANITERA REPLACEMENT,
ttd. Eddy Purwanto
33
