Key Benefits:
the area was selected in one couple of candidates who exercised
democratic based on direct, general, free, secret, Honestly, and
just ";
-Article 56 paragraph (1) Act 32/2004 that, " The candidate partner as
is referred to by a clause (1) submitted by the party political or joint party
politics ";
IV.3. That the people's mandate to the head of the region and the deputy head of the region for
running the wheel of government for 5 ymination Number 107 /PDT.G/2009/PNTK dated 11
May 2010 (Evidence P-10), where amar's verdict among others stated
BPKP commits an act against an adverse law The applicant
for performing a public act that does not become an authority
BPKP to do an investigation;
III.6. That BPKP as sued has made an appeals law attempt to
the High Court of Lampung over the Cape State Court's termination
The Reef, so as not to dissolve the Police Department and
The Prosecutor to keep bringing The case went to trial. Up to
this request was filed yet there was no legal force ruling fixed up
5
the problem is;
III.7. That on the basis of possible implications of the process, the applicant as
the individual of the Indonesian citizen considers its constitutional right
potentially harmed by the enactment of Article 31 of the paragraph (1) and
The explanation of Article 31 verse (1) Act 32/2004;
III.8. That Section 31 paragraph (1) Act 32/2004 as amended with the Invite-
Invite Number 12 Year 2008 on the Second Amendment of the Invite-
Invite Number 32 Year 2004 on the Local Government states,
" The head of the region and/or deputy head of the area dismissed temporarily by
president without going through the proposal of the DPRD for being charged with a follow up
criminal corruption, terrorism, treason, and/or criminal conduct
against security country ". Explanation of Article 31 of the paragraph (1) 32/2004
states, "What is referred to as" indicted "in this provision is
The event file has been devolve to the court in the process
prosecution."
III.9. The applicant assumes Article 31 of the paragraph (1) and the explanation of Article 31 of the paragraph (1)
Act 32/2004 will potentially harm the constitutional right of the applicant
violation of rights as warranted in the 1945 Constitution, namely:
a. "Sovereignty is in the hands of the people and is exercised according to the Invite-
Invite Basis" , [Article 1 of the paragraph (2) of the 1945 Constitution];
b. "The State of Indonesia is the state of the law", [Article 1 of the paragraph (3) of the 1945 Constitution];
c. "All citizens simultaneously in the law and
government", [Article 27 paragraph (1) of the 1945 Constitution];
d. "Everyone is entitled to the recognition, guarantee, protection, and
fair legal certainty as well as the same treatment before the law"
, [Article 28D paragraph (1) UUD 1945];
e. "Everyone has the right to be free from discriminatory treatment on the basis
whatever and is entitled to the protection of the treatment
is discriminatory to it", [Article 28I paragraph (2) of the 1945 Constitution].
IV. The Reasons For Application Testing
IV.1. That provision of Article 31 paragraph (1) of Act 32/2004 is the penalty that
was dropped without going through the judicial process as set in
Law No. 8 Year 1981 on Criminal Event Law
6
next is called Act 8/1981, (Proof P-11), because a judicial process may prove that a person submitted to the court is not
found guilty. Another argument is that a person's guarantee
will not be found guilty until the "court ruling that
has a fixed legal force" that is in line with "the presumption of innocence
at fault" as set in Article 8 of Law Number 4
Year 2004 on the Power of Justice, subsequently called Act 4/2004,
(Evidence P-12) and in line with the principle of "recognition, assurance, protection and fair legal certainty", as set forth in Article 28D paragraph
(1) UUD 1945;
The uncertainty and injustice that presented with the presence of Article 31
paragraph (1) Act 32/2004 reinforced again with the obscurity of the Description of Article
31 paragraph (1) Act 32/2004. That the explanation of Article 31 of the paragraph (1) Act 32/2004
as if confirming that the indictment of the Attorney General is
something that is certain and will not be fixed, when the court
the state of the matter of the case of the case of the matter is possible just return the file
the indictment on the basis of consideration there is a fallaness or displeasure
The General Prosecutor in the indictment letter. Error and
exclusions, for example in terms of the "defendant's identity" may be
trigger of the defendant's exception or the defendant's legal advisor, which can
lead to the release of the defendant from the indictment of the Prosecutor
The General Prosecuting in the trial. A state court may provide
advice to the Attorney General to correct the indictment.
The probability in this law practice then places the charge material
The explanation of Article 31 of the paragraph (1) Act 32/2004 Contrary to the principle of certainty and justice in the practice of criminal trial trial (Evidence P-13);
IV.2. That other fundamental reason is that the head of the area and/or
the deputy head of the area is chosen on the basis of the mandate of the people who have voted
the regional head couple and the deputy head for a 5-year term period
as specified in Article 110 paragraph (3) of Act 32/2004, that is that,
" The regional head and the deputy head of the region as referred to in the paragraph
(1) holds the office for 5 (five) years from the inauguration and
thereafter can be reelected in the same post for only one
7
times of term ". The provisions of Article 110 paragraph (3) Act 32 /2004
show that the pair of regional heads and regional vice heads
run the wheel of government for 5 years based on the mandate of
the people who are aware that they choose the head region and deputy head
area for a 5-year term through the mechanism set in:
-Article 56 paragraph (1) Act 32/2004 that, " Head05, which states, holders
power of financial management section has the wrong authority
one, (a) sets out policies about the implementation of APBD;
III.3. That as a result of the impact of the global financial crisis in Indonesia and
economic slowdown, PT. BPR Tripanca Setiadana is liquidated and located
in the handling of the Institute of Savings Guarantee (LPS) as set
in Act Number 243 on the Institute for Guaranteed Savings
(LPS), so that the cash funds of the Eastern Lampung region It's stored on PT.
BPR Tripanca Setiadana has not been able to be retracted until the process
liquidation is completed by LPS;
III.4. That the Lampung County Police conduct an act of inquiry and
place the applicant as a suspect as shown
by the Lampung County Police summons to the applicant (Proof
P-8) as a result of assignment of th ears can only
be revoked through the political process in the DPRD as set out in Section 29
Act 32/2004, Among other things, after the legal ruling of a law of force
about the criminal acts that are made the basis of the dismissal of the regional head
or the deputy head of the area concerned. The provisions of Article 31 paragraph (1)
Act 32/2004 is clearly mem-bypass or straddled the principle of sovereignty
the people in order for the election of the people's leadership to lead an
area. The event of bers of the BPK as referred to in Section 13 of the letter a, letter c, and the letter e.
3. National Commission on Human Rights
National (Komnas HAM)/Law Number 39 of 1999 on Human Rights
Article 85 (1) The Pit Stop of Human Rights is performed
based on the decision of the plenary session and is notified to the The People's Representative Council of the Republic of Indonesia is defined by the Presidential Decree.
(2) Members of the Human Rights Comnas stop between time as members because:
a. Died; b. at the request of its own; c. physical or spiritual pain that
result in the member being unable to perform the task for 1 year continuously.
d. Convicted of guilty committing felony crimes; or
e. Doing despicable deeds or other things that were cut off by the plenary session for defaming dignity and reputation; and or reducing the independence and credibility of the Komnas HAM.
4. Indonesian Broadcasting Commission (KPI)/Act Number 32 of 2002 on Broadcasting
Article 10 paragraph (4) (4) KPI members cease due to:
a. Term expires; b. Died in the world; c. resign; d. A prison sentence is based on
a court ruling that has gained the legal force
11
NO. THE NAME OF THE SOFT/BASIC RULES OF THE STOP
stay; and e. no longer meets the requirements
as required in paragraph (1)
5. Judicial Commission/Invite-Invite Number 22 Year 2004 on Judicial Commission
Article 33 paragraph (1) (1) Chairman, Vice Chairman, Commission Member
Judicial dismissed not with respect from office by the President with consent DPR, on the proposal of the Judicial Commission on the grounds: a. breaking the oath of office; b. is convicted of guilty
committing a criminal offence based on a court ruling that has obtained a fixed legal force;
c. performing a despicable deed; d. continuously labeling the obligations
in the running of her job duties; or
e. In violation of the title ban, as referred to in Article 31.
6. Police/Government Regulation No. 1 Year 2003 of the Pit Stop Member of the Republic of Indonesia juncto Invite-Invite number 2 of 2002 on the Republic of Indonesia State Police
Article 12 (1) Members of the State Police
discharged not with respect from the State Police Service if: a. A prison sentence is based on
The court ruling that has had the power of the law remains and according to the consideration officials authorities cannot be retained to remain in the RI State Police Service;
b. It is known to later provide false and/or untrue captions at the time of registering as a candidate for the Republic of Indonesia State Police;
c. ... 7. Prosecutor/Act
Number 16 of 2004 on the Prosecutor of the Republic of Indonesia
Article 13 (1) The prosecutor is dismissed not with respect
from office for the reason: a. is convicted of committing an
criminal offense, based on a court ruling that has obtained a fixed legal force;
b. continuously through the obligation to perform its tasks/work;
c. violates the prohibition as referred to in Article 11;
d. ... 8. Judge/Act
Number 5 of 2004 on Changes to the Law No. 14 of 1985 on
Article 12 (1) Chairman, Vice Chairman, Young Chairman, and
Chief Justice of the Supreme Court dismissed not with respect from His office by the President on the proposal
12
NO. THE NAME OF THE SOFT/BASIC RULES OF THE STOP
Supreme Court
The Supreme Court is with the reason: a. A prison sentence is based on
a court ruling that has obtained a legal force remains for committing a criminal offence threatened with a prison criminal 5 (five) years or more;
b. performing despicable acts; c. continuously labeling the obligations
in the running of his job duties;
d. ... 9. Bank Indonesia/Invite-
Invite Number 23 Year 1999 on Bank Indonesia
Article 48 Member of the Board of Governors cannot be dismissed in his term unless the concerned resigns, are shown to be performing criminal offense, or a fixed impediation
10. Minister/Act Number 39 of 2008 about the Ministry of State
Article 24 (2) The Minister is dismissed from his post by
President because: a. ... b. cannot carry out the task
for 3 (three) months in a row;
c. found guilty based on the court ruling that has obtained the legal force persists for committing a criminal offence of criminal prison 5 (five) years or more;
d. ... The iV.6. Based on the table description above, then the state official
commits a criminal offence cannot be dismissed before there is a verdict
a court with a fixed legal force stating which
is concerned for the consequences. perform criminal acts that are charged.
The arrangement is thus the implementation of the principle of " not
guilty (presumption of innocence) in law and government.
Thus, the terms of the a temporary stop of the section
as referred to in Section 31 of the paragraph (1) of the Act 32/2004 may
be qualified as a presumption of innocence
(presumption of innocence) by setting the regional head and/or
temporarily discharged for being convicted of a criminal offence
corruption, terrorism, terrorism, macar and/or criminal acts against
state security, although concerned only has just been stated as
defendant;
IV.7 That the Constitutional Court in Decree Number 133 /PUU-VII/2009
13
dated November 25, 2009 on the legal considerations section, stated
that the application of the general applicable law principles should
be exercised on the principle of justice, that is that it is not common to be
executed on two principles of justice and in order to disclade the taste
of society's justice, the principle of legal power and the principle of similarity in
ahead of the law. That in the principle of legal power requires that
a rule of law enacted should be able to reach out to any and
of all persons without exception, whereas the similarity before the law is
requires that all and every person is equal in
the presence of a judge as applying the law and obtaining
the similarity of opportunities in the governing field. The principle of similarity
the opportunity before the law and the government is the principle
constitutive to the creation of justice in all legal systems;
That in the Perkara 133 /PUU-VII/2009 ruling, where the Court
Constitution have granted the applicant who, " KPK Chairman
stop or be dismissed in a fixed term after being sentenced to be based on
a court ruling that has obtained a fixed legal force;
V. Petitum
Based on the entire description and the legal reasons
and supported by p>is not to be accepted
(niet onvankelijk verklaard);
3. Received overall Government Description;
[2.4] A draw that the People's Representative Council has submitted
A written statement received at the Court of Justice on the 12th
November 2010, as follows:
THE PROVISIONS OF ARTICLE 32 OF 2004 ON LOCAL GOVERNMENT (SUBSEQUENTLY CALLED THE LOCAL GOVERNMENT ACT) ARE BEING HONED FOR TESTING AGAINST THE UUD OF THE REPUBLIC OF INDONESIA IN 1945 THE APPLICANT IN THE PLEA FOR A QUO FILED testingplicant ' s plea for the whole;
2. That the provisions of the provisions of the provisions of Article 31 of the paragraph (1) Invite-
Invite Number 32 of 2004 on the Local Government, which
states, " The Regional Chief and/or the Deputy Chief of Regions are dismissed
by the President without going through the proposal of the DPRD for being indicted
committing a criminal corruption, terrorism, macar, and/or
criminal charges against State Security ", at the nature of testing
the norm. which has a construction in accordance with the provisions of Article 219 of the paragraph (1)
Act No. 27 of the Year 2009 on MPR, DPR, DPD and DPRD
provisions of Article 219 paragraph (1) Act No. 27 of 2009 concerning
MPR, DPR, DPD and DPRD above;
3. That for the Government, the a quo testing event at the time
this represents an important momentum in the revised framework of the Invite-
Invite Number 32 Year 2004 on the Local Government, in particular
18
relating to the provisions of Article 31 of the paragraph (1) of the a quo Act
so that the Government gets the belief that the norm is already
true within the framework of the Constitution of the Republic of the Republic of State
Indonesia In 1945. In terms of the norm it is true, then
the legal politics contained therein will be implemented
in accordance with the legal purposes of justice, legal certainty, and
social expediency;
4. That to realize the purpose of the law is meant, one of the roles of
The Constitutional Court is to give a consistent ruling, in
where this is in accordance with the reliable judiciary or the judiciary
reliable. One principle in reliable judiciary is a judiciary that can
give the ruling consistently so that the Government will
get the revised guidelines Act No. 32 of 2004 on
Governance The area through its ruling and the Government implores
to the Court in order to provide a consistent ruling, the ruling
that istiqomah with an earlier ruling in the same case construction
its laws;
5. That the Government agrees with the applicant stating that
the material of the charge of the statute should not be contrary to the 1945 Constitution.
However in terms of its definition into the Government Act
has certain considerations in operationing
the meaning of the ideas and philosophy contained therein to a legislation
quo;
6. That the Constitution of 1945 is a solemn agreement made by the nation
Indonesia so that it should be interpreted more than just a legal document
it is written. Therefore, the 1945 Constitution is a fully spiritual document
with values of morality. In the context of testing this legislation,
let us build the same perception that the Constitution of 1945 as
a common source of asas or morals. If in consideration or dictum
considering it is written "given the Basic Law of 1945", it is not sufficient
if only read as a reference to its rule, but it must be more
in than that is to refer to General principles or the value of morality that
is contained therein;
7. That in operating the values contained in the 1945 Constitution,
19
The government is not only a mere look at its text, but tries
undergoes by digging into the values of the morality contained therein.
The norms that exist in the 1945 Constitution are open to interpretation, not
is the final norm scheme (finite scheme). UUD 1945
has a high position in the normative hierarchy of our legal system.
The higher the position in that hierarchy will become richer by
the general principles of asas-asas need to be interpreted. The government is digging
the meaning of morality and the general principles contained in the provisions
Constitution of 1945 with the desire of our nation to realize the hosting
a clean, authoring state government, and accountable. Therefore,
the desire of the nation should be supported by the apparatus
the host of clean, authoring country, and has an accountability
high. The will to realize this, then gives birth to a choice
policy (legal policy) formulated into temporary dismissal
and a fixed stop in the legislation a quo;
8. That the choice of this policy is based on consideration of conscience and for
the interests of the concerned and the authority of the institution. The question that
needs to be sought out objectively is, whether there is no load
the psychological for the head of the area who is being accused when
runs the task and its functions. This policy option shows the way
laws not solely simply depaning the legal logic that
empties to legal certainty, but more deeply than that is
depaning the considerations of morality and kenuranian (compassion). The idea
like this should be followed by and closely related to the factors
the psychological and spirit contained in all of the apparatus
the organizers of the country, as it contained also the courage to
extends our way of law by depanting rules and behavior,
not only is solely tied to its textuality, but very
considering the evolving sense of fairness and morality and
desired by the whole nation;
9. That on the other hand, the norm a quo was formulated as well in order to
help regional head and vice-chief of the affected area
disasters to be defendants in criminal cases, in order to concentrate
face The legal process he's running undisturbed.
20
liabilities charged by a quo in
the execution of tasks and functions;
Conclusion Based on that explanation above, the Government is pleading with Yang
Your Majesty The Chairman/Assembly of the Constitutional Court of Constitutional Court examined, prosecuting, and
severing the application of Law No. 32 of 2004 on
The Local Government against the Constitution of the Republic of the Republic
Indonesia Year 1945, can provide a ruling as follows:
1. Stating that the applicant does not have a legal standing (legal
standing);
2. Rejecting the applicant's testing request for the whole or the no-
Number 11 /PUU-V/2007).
About The 2004 Law Number 32 Act Testing Matter About Local Government. Against the provisions of Article 31 paragraph (1) Act Number 32 of the Year 2004
about the Local Government deemed to be contrary to Indonesia
Year 1945 The Constitution of the Republic of State, Government may
deliver explanation as follows:
1. That before the Government elaborates on further, the Government want n of 1945;
4. That, in connection with the testing of Article a quo of the Local Government Act, it needs
understand the background in the General Description of the Local Government Act
which explains that, " in order to optimize the coaching function
and surveillance, the Government can apply sanctions to
local government organizers if found
aberrations and violations by local government organizers
The rights and/or constitutional authority referred to the provisions of Article 51 of the paragraph
(1) it is expressly expressed in its explanation, that "the" right
constitutional "is the rights set forth in the" State Basic Law
Republic of Indonesia in 1945. " The provisions of Article 51 of this paragraph (1) affirm, that only rights explicitly set out in the 1945 Constitution
only that includes "constitutional rights";
Therefore, according to the MK Act, for a person or a party to be a member of the Constitution. can be accepted
as the applicant has a legal standing (legal standing) in
an Act of testing the Act against the Constitution of 1945, then what is
first has to explain and prove:
a. I will modify it as a a quo as
referred to in Section 51 of the paragraph (1) of the MK Act;
b. the rights and/or its constitutional authority as referred to in
"The explanation of Article 51 of the paragraph (1)" is considered to have been harmed by the promulcency of an invitation;
Regarding the parameters of constitutional losses, the Constitutional Court has been
gives the definition and limitations on constitutional losses arising
due to the enactment of a law must meet 5 (five) terms (vide
Verdict Case Number 006 /PUU-III/2005 and Perkara Number 011 /PUU-V/2007)
that is the following:
a. the rights and/or constitutional authority of the applicant given by
Constitution of 1945;
b. that the rights and/or constitutional authority of the applicant are considered
by the applicant has been harmed by a law being tested;
c. that the rights and/or constitutional authority of the applicant
is referred to be specific (special) and actual or at least is
25
a potential that according to reasonable reasoning can be determined to occur;
d. Due to (causal verband) between the loss and
the enactment of the test-moveed Act;
e. It is possible that with the request of the request then
the loss and/or constitutional authority postured will not or
no longer occur.
If the five terms are not met by the applicant in the The case
testing the bill a quo, then the applicant does not have a legal qualification
(legal standing) as the applicant;
Respond to the applicant a quo, the House of view that
The applicant must be able to prove first whether the applicant is
as a party which considers the right and/or its constitutional authority
aggrieved over the enactment of the testing, especially in
conceptions of a loss to the rights and/or authority
of its constitutionality as because of the expiring provisions
to be tested;
Against such legal standing (legal standing) it, the House submitted
fully to the Speaker/Assembly of the Constitutional Court for
consider and assess whether the applicant has a legal position
(legal standing) as provided by Article 51 of the paragraph (1) of the MK Act and
under the Decree of the Constitutional Court of Perkara Number 006 /PUU-III/2005
and Perkara Number 011 /PUU-V/2007;
2. The Local Government Act testing
The applicant in the plea a quo, assumes that the right
constitutionality has been harmed by the enactment of the provisions of Article 31 of the paragraph (1)
The Local Government Act is that The applicant feels aggrieved
with a temporary dismissal provision without a court ruling
a legal force remains linked to the application of "the asas of no
guilty" as well as not in accordance with the spirit and spirit of the Constitution 1945;
Against the view of the applicant, the DPR gave the caption
as follows:
1. That, in accordance with Article 1 of the paragraph (3) of the 1945 Constitution which mandates
the country of Indonesia is a state of law, then in hosting
states and governments should certainly be in line with the principles of the country
26
the law is one of which should be based on the perinvite rule-
the invitation as a positive law. Based on the provisions of Article 1 of the paragraph
(3) of the Constitution of 1945, then in the holding of the local government
constitutionally shall be grounded in Article 18 of the 1945 Constitution;
2. That, the holding of the Local Government is set up in BAB VI, Article
18 paragraph (1) of the 1945 Constitution which states that, " State of the Republic of the Republic
Indonesia is divided over provincial and provincial areas it is divided
over county and city, each province, county/city
has an area government governed by law ",
further provisions regarding the local government head are set in
Article 18 paragraph (4) of the 1945 Constitution that states, " The Governor, the regent, and
respective mayors as provincial regional governments,
counties, and cities are democratically elected ". Conditions on
the holding of local governments is set further by the invite-
invite as mandated by Article 18 paragraph (7) of the 1945 Constitution, which
reads "the arrangement and layout of the local governance
is set with the legislation";
3. That, the provisions of Article 1 of the paragraph (2) and paragraph (3) and Article 18 of the 1945 Constitution
it is the constitutional basis for the governance of the government
the area to form the Local Government Act as amended
with Law No. 12 of 2008, which was in it set
provisions regarding the dismissal of the regional head and the deputy head of the area.
That on the basis of that constitutional foundation, the House of Representatives view
the provisions of the Act a quo that governs the holding of local government
related to the provisions a temporary stop to the head
the regional vice-head of the area that is stuck in the criminal offense is in
order to organize an area government that corresponds to the principle
the legal state of the Constitution of the Constitutiofrom the discriminatory treatment
on any basis and entitled to protection against
that discriminatory treatment".
C. Speaker of the House
Against the applicant ' s control as described in the a quo plea,
the House in the delivery of his views first outlined the
legal standing (legal standing) can described as follows:
1. Legal standing (Legal Standing) The applicant Qualifying that must be met by the applicant as a Party is s ion] and
enforcement of the principle the legal country [Article 1 of the paragraph (3) of the 1945 Constitution] because of the absence
33
Legal certainty as a result of the penalty of the sentence "Pit Stop
while from the post of regional head without a DPRD recommendation" prior to
the court ruling of a legal force remains;
8. That the Associated IBM Cloud Service is not available to the Cloud Service, as applicable, the followiand ouch sanctions or penalties should be first
through the judicial ruling criminal in the dismayed case, for rights-
The constitutional right of the applicant remains respected, protected, and fulfilled
of possible arbitrary acts of state apparatus, such as police,
prosecutors, judges, and other government officials as well as the public. With
so temporary dismissal against KPK Leadership is
A fairly fair and proportionate action for the KPK leadership
is set as a suspect in order to give balance
between maintaining the agility of execution of KPK tasks and authority
and protection against the rights of the citizens who are the Leadership
KPK. If against the KPK interim stop because
is designated as a suspect then it should be Act 30/2002 setting the layout
how to fill the temporary KPK Leadership vacancy to carry out
the task The leadership of the KPK is temporarily suspended. Article 32 paragraph (1) letter
c Act 30/2002 which adheres to prejudicial guilt of expressis
verbis violates the principle of fair legal certainty that is guaranteed by Article
28D paragraph (1) UUD 1945, hence dalil-dalil The applicant is quite grounded
and reasoned my huku. (vide Constitutional Court Number 133 /PUU-
VII/2009 dated November 25, 2009, letter e, pages 69-70);
31
11. That, on the basis of the description, the House of Representatives view that there is no
contention between Article 31 of the paragraph (1) of the Law No. 32 of 2004 on the Local Government with Article 1 of paragraph (2) and paragraph (3),
Article 27 of the paragraph (1), Article 28D paragraph (1) and Article 28I paragraph (2) of the Constitution of 1945;
Thus the House pleads with the Speaker/Assembly of the Constitutional Court which
His majesty gives an amar the verdict as follows:
1. The applicant a quo does not have a legal standing (legal
standing), so that the a quo request should be declared unacceptable
(niet ontvankelijk verklaard);
2. Stating that a quo was rejected for the whole or not-
it would not have been acceptable for a quo
3. The DPR's description was accepted for the whole;
4. Stating the provisions of Article 31 paragraph (1) Act No. 32 of 2004 on
The Local Government does not conflict with Article 1 of paragraph (2) and paragraph
(3), Article 27 paragraph (1), Article 28D paragraph (1) and Article 281 paragraph (2) of the 1945 Constitution;
5. Stating the provisions of Article 31 paragraph (1) of Act No. 32 of the Year
2004 on the Local Government remains a binding legal force;
[2.5] A draw that the Court has heard and read
the caption reads The Sides Of The Ir. Hi. -Abd. Haris Nadjamuddin, M. E,
The following is the following:
1. That the applicant in the invocation of the Related Party a quo is the Regent
Elected in the Election of Bupati and Deputy Regent of Bone Bolango, Province
Gorontalo based on the Decree of the County Election Commission Bone
Bolango Number 10 /KPU-BB/2010 (Evidence PT-1), in which the Constitutional Court
has rejected a plea to the KPU Bone Bolango Decision
a quo through the Number 11/PHPU.D-VIII/ 2010 dated August 12, 2010
(Proof of PT-2), so it thus remains legitimate and binding
the law of the Decision of the KPU Bone Bolango a quo through the Putermination Number 11
/PHPU.D-VIII/2010;
2. That the applicant in the request of the Related Party a quo has submitted
appeal on July 6, 2010 (Evidence PT-3) to the Court Termination
Negeri Limboto on 6 July 2010 Number 280 /Pid.B/2008/PN.Lbt on behalf of
Defendant Ir. Abdul Haris Nadjamuddin (Evidence of PT-4), so that the ruling
Limboto State Court a quo has not yet had a fixed legal force (Evidence PT-
32
5);
3. That the Governor of Gorontalo Province has submitted a letter dated 30
August 2010 Number 100 /Pem/603/VIII/2010 to the Minister of the Interior
in order to publish a Decision Letter on Enactment Of The Regent
and Vice Bupati Bone Bolango Period 2010-2015 Pemilukada results
on 5 July 2010 on behalf of Ir. Abdul Haris Nadjamuddin, as Regent
(The Applicant In The Corresponding Party Requests a quo) and Hi. Hamin Pou
as Vice Regent (Evidence PT-6);
4. That the majority of the people of Bone Bolango County registered
as voters had voted Ir. Abdul Haris Nadjamuddin as Regent
(The applicant in the pleas of the Related Party a quo) and Hi. Hamin Pou
as Vice Regent, which later KPU Bone Bolango set Ir.
Abdul Haris Nadjamuddin and Hi. Hamin Pou as Regent and Vice Regent
Elected in Bone Bolango County 2010-2015 (vide Evidence PT-1);
5. The decision by the Electoral Commission of Bone Bolango County No. 10 /KPU-
BB/2010 [vide Evidence PT-1] has become evidence that the Related Parties got
the people mandate to lead and run the wheel of Governance
District Bone Bolango for the 2010-2015 Period, which was the
manifestation of the principle of people's sovereignty in order to frame the frame
constitutional democracy as the silence of Article 1 of the paragraph (2) of the 1945 Constitution and
the spirit of the Republic's legal state Indonesia as a manifestation of Article 1 of paragraph
(3) UUD 1945;
6. That the people's mandate to lead the course of the governing wheel
as shown in the case of Bone Bolango County
must be respected in order of the spirit of constitutional democracy and not
can be reduced or Obstructable the implementation of the five annual mandate for
running the wheel of the administration on the basis of a political verdict before
The court verdict as shown in Article 31 of the paragraph (1) and
The explanation of Article 31 of the paragraph (1) Act Number 32 of the Year 2004 [Evidence P-
6] as opposed to the 1945 Constitution [Evidence P-7];
7. That Section 31 paragraph (1) and Explanation Article 31 paragraph (1) of the Act
Number 32 of 2004 is potentially very detrial to the Related Parties to
the principle of the principle of the sovereignty of the people [Article 1 of the paragraph (2) of the 1945 Constitutp>
Regions and Regional People's Representative Council, which stated,
" DPR members are temporarily dismissed as:
a. To be a defendant in a public criminal offense threatened
with a prison criminal 5 (five) years or more; or
b. To be a defendant in a special criminal offense;
f. Article 24 paragraph (3) of the Law Number 39 of 2008 on
The Ministry of State, states that, " The president is laying off
while the Minister charged with a convicted criminal offence
rocess ", the provision is punishment40
dropped without going through the judicial process because in the judicial process
it can be proven that someone submitted to the court is not proven
guilty, in addition it must be stated Not guilty until
A court ruling has a fixed legal force as
as the presumption of innocence;
[3.8.4] That the applicant's constitutional loss is specific and potential will be occurred wit>[3.1] Draw that the main issue of the principal application is testing
materiile Article 31 of the paragraph (1) and Explanation of Article 31 of the paragraph (1) Act
Number 32 of 2004 on the Local Government (Sheet) Republic Country
Indonesia Year 2004 Number 125, Additional Gazette Republic of State
Indonesia Number 4437, subsequently called Act 32/2004) against the Basic Law of the Republic of Indonesia in 1945 (later called UUD)
1945);
37
[3.2] weighed that before considering the subject's subject,
The Constitutional Court (later called the Court) was first going
consider:
a. Court authority to check, prosecute, and disconnect
plea a quo;
b. Legal standing (legal standing) The applicant to apply a
quo;
Constitutional authority
[3.3] weighing that under Section 24C of the paragraph (1) of the 1945 Constitution, Section 10
paragraph (1) The letter a law No. 24 Year 2003 on the Court
Constitution (State Gazette of the Republic of Indonesia in 2003 No. 98,
Additional leaf of the Republic of Indonesia Number 4316, subsequently called
Law MK), Article 29 paragraph (1) letter a Law Number 48 Year 2009 about
Justice Power
157, Additional Gazette of the Republic of Indonesia No. 5076), one
Constitutional authority of the Court is courting at first level and
the last of its verdict. is final to test the legislation against
The Basic Law;
[3.4] Draws That Because a quo is concerning
testing of the Act against the Basic Act, in casu Act 32/2004
against the Constitution of 1945, then the court is authorized to examine, prosecute,
and severing the a quo;
[3.5] Draw that, the provisions are moveed testing already
once tested by the Court with an amar verdict rejecting a plea, that is
in the ruling Number 024 /PUU-III/2005 dated 29 March 2006, so whether
is quite a reason for the Court to be able to retest the provisions of a quo
due to Article 60 of the MK Act and Article 42 of the Constitutional Court Regulations
Number 06 /PMK/2005 on the Event Guidelines Test case
Act (subsequently called PMK 06/2005), it is Will
be considered together with the subject;
38
Legal Occupation (Legal Standing) The applicant
[3.6] weighed that under Article 51 of the paragraph (1) and
The MK of the MK Act, which could apply for testing the invite-
invite against the 1945 Constitution is those who regard the right and/or
the constitutional authority granted by the 1945 Constitution is harmed by
the enactment of a law, namely:
a. Individual citizens of Indonesia (including groups of people
have common interests);
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 promulg;
c. the public or private legal entity; or
d. country agencies;
Thus, the applicant in testing legislation against UUD 1945
must explain and prove first:
a. The position of the applicant, as referred to as Article 51 of the paragraph (1) of the Act
MK;
b. the absence of the constitutional rights and/or constitutional authority provided by
of the 1945 Constitution resulting from the enactment of the legislation
testing;
[3.7] In a draw that the Court has since the ruling Number 006 /PUU-III/
2005 dated May 31, 2005 and verdict No. 11 /PUU-V/2007 dated 20
September 2007 establishing that loss of rights and/or authority
constitutional as referred to Article 51 paragraph (1) The MK bill must meet
5 (5) terms, that is:
a. the rights and/or constitutional authority of the applicant granted
by UUD 1945;
b. The rights and/or constitutional authority by the applicant are considered
aggrieved by the enactment of the trial which is being treated for testing;
39
c the constitutional loss must be specific (special) and actual
or at least any potential that according to reasonable reasoning can be
ascerable to occur;
d. (causal verband) link between the intended loss
and the applicable law-move-move;
e. It is possible that with a request granted,
Constitutional losses such as the postured will not be or are no longer
occurring;
[3.8] Draws that based on the description as it is on
paragraph [3.6] and [3.7] above, further the Court will consider the legal standing (legal standing) the applicant in the a quo
as follows:
[3.8.1] That the applicant The most important person is a citizen of Indonesia as evidenced by a photocopy of the Tag Card. Residents (KTP) on behalf of
Satono (vide Evidence P-4), so as to be the applicant
individual of the Indonesian citizen;
[3.8.2] That as a person of Indonesian citizens, the applicant has a right the constitutional granted by the 1945 Constitution, which is the right to the
the commonality of the law and the government [Article 27 paragraph (1) of the Constitution
1945], the right of recognition, guarantee, protection, and legal certainty that
is fair, and equal treatment before the law [Article 28D paragraph (1) UUD
1945], and free rights of the discriminatory treatment of the basis of what
and the right to be protected against the discriminatory treatment
that discriminatory is [Article 28I paragraph (2) of the 1945 Constitution];
[3.8.3] That the applicant considers the right The constitutionality is harmed by the enactment of Article 31 of the paragraph (1) Act 32/2004 which states, " Head of the region
and/or the deputy head of the area is temporarily suspended by the President without
through the proposed DPRD for indictment committing a criminal corruption, a follow
criminal terrorism, makar, and/or follow-up criminal against state security " and
The explanation of Article 31 of the paragraph (1) Act of 32/2004 which states, " In question
with indicted in this provision is the file for which it is devolve
to the court in the prosecution pid.B/2008/PN.LBT has no fixed legal force;
That while the Related Parties follow the trial proceedings in Court
Limboto State, the Related Parties follow the nomination process as a Regent in
Bone Bolango County has an independent line of 5 prospective couples.
supported political parties and KPU Bone Bolango sets the Related Parties
is eligible to follow the Regional Head's nomination by stage-
the stages performed by the KPU of Bone Bolango County, and in
the Pemilukada The Related parties receive the mos MD, as the Chief of the Members,
Achmad Sodiki, M. Arsyad Sanusi, Harjono, Ahmad Fadlil Sumadi, Hamdan
Zoelva, Maria Farida Indrati, Muhammad Alim, and M. Akil Mochtar, who
spoken in the Plenary Session open to the general public on Wednesday dates
six months April of the year two thousand eleven by our nine Constitutional Judges,
that is Moh. Mahfud MD, as the Chief of the Members, Achmad Sodiki,
Harjono, Ahmad Fadlil Sumadi, Hamdan Zoelva, Maria Farida Indrati, Muhammad
Alim, M. Akil Mochtar, and Anwar Usman>a fixed stop after there is a legal ruling court ruling
remains;
[3.13] Draw that the Court has also heard the Party ' s caption
Related Ir. Hi. -Abd. Haris Nadjamuddin, M. E; who is in support of
dalil-dalil applicant a quo;
[3.14] States that to prove his interest, the Related Party
submitted written proof given the proof of the Evidence PT-1 up to the Evidence for PT-6
and 3 (three) witnesses each named Patta Agung, S.H., Suriaty
Tongkodu, S.H., and Harwys Pilomonu, S.H., who on the point described
44
The chronology of the Related Parties becomes a defendant in a criminal offence as well
candidates for the elected regional head of Bone Bolango;
Court opinion
[3.15] weighed that based on The applicant 's control and the evidence tool
the letter or the applicant' s letter, the description of the Related People,
the Government of the People's Representative Council, and the witness
Related parties, the Court argued. as follows:
[3.16] A draw that the a quo plea is Re-testing
materially a law (rejudicial review) because the Court once
severed Test Section 31 paragraph (1) Act 32/2004 and its Explanation of
Article 27 paragraph (1) and Section 28D paragraph (1) 1945, the Court Decree
No. 024 /PUU-III/2005 dated 29 March 2006. In legal considerations
the ruling a quo, the Court stated that:
a. Dalil who qualified the temporary dismissal is equal to
punishment in the notions of criminal law, which in that way was then
built construction of thought that temporary stops were at odds
with praduga principle Not guilty, is not appropriate;
b. The temporary stop is precisely the principle of equality or
derailation before the law as referred to by Article 27 of the paragraph
(1) and Article 28D paragraph (1) of the 1945 Constitution;
c. It is not appropriate that the temporary dismissal of the title of Regent is said to be
discriminatory by comparing it to public officials
or other parties in a different qualification and are governed by the law
which is different;
d. Article a quo also provides a certainty in his position as regent
due to the temporary dismissal there is no
the impediment for the work of the proceedings against the intended indictment
due to the result of the termination of the law. has lost the possibility through his post, can
block or hinder judicial proceedings (obstruction of justice)
so that the court ruling that has the power of the law remains (inkracht
van gewijsde) can be quickly acquired;
45
[3.17] weighed that by the testing of Article 31 of the paragraph (1) Act 32/2004
and its Explanation was ever made against Article 27 of the paragraph (1) and Article 28D
paragraph (1) of the 1945 Constitution and was once broken by the Court of Justice.
024 /PUU-III/2005 dated March 29, 2006) so that mutatis mutandis reason
the law of the ruling is valid in this ruling in regards to
Article 27 paragraph (1) and Section 28D paragraph (1) UUD 1945 and considered ne bis in idem,
then what will be considered is Test Article 31 of the paragraph (1) Act 32/2004
and its explanation of Article 1 of the paragraph (2), Article 1 of the paragraph (3), and Article 28I paragraph
(2) of the 1945 Constitution;
[3.18] It is balanced that even though the applicant adds a test stone (touch
stone) testing a quo i.e. against Section 1 of the paragraph (2), Section 1 of paragraph (3), Article 27
paragraph (1), Section 28D paragraph (1), and Article 28I paragraph (2) of the Constitution of 1945 so as to be-
, there appears to be a difference with Perkara Number 024 /PUU-III/2005, will
but from the description of the request and the applicant ' s caption (Syaiful Ahmad
Dinar) It is not different because of both the request and the expert information
The applicant outlines the testing of the a quo against the principle of innocence,
the principle of legal certainty, and the non-discriminatory principle that the Court
argues that the substance of the application and the reasons for testing
a quo is the same as the request that has been disconnected in Perkara Number
024 /PUU-III/2005 dated 29 March 2006;
[3.19] Draws that the practice of events in the testing of legislation
against the Basic Law The terms of the paragraph,
section, and/or sections of the laws that have been tested, cannot
be redirected, except for the reasons of different constitutionality (vide
Article 60 of the MK Act and the applicable law. Article 42 PMK 06/2005);
[3.20] A draw that from a series of court considerations above
in relation to one another, according to the Court, the applicant cannot
indicate the constitutionality of the constitutionality differs from the request that has been
didisconnected in Perkara Number 024 /PUU-III/2005 March 29, 2006 so
against Perkara's request No. 53 /PUU-VIII/2010 was specified ne bis in
idem;
46
4. KONKLUSI
Based on the entire assessment of the facts and laws as
described above, the Court concluded:
[4.1] The court is checking, prosecuting, and severing the plea
a quo;
[4.2] The applicant has a legal position (legal standing) to submit
a quo a quo;
[4.3] Request for the applicant ne bis in idem;
Based on the Basic Law of the Republic of Indonesia of Indonesia Year
1945 and by recalling the Law No. 24 of 2003 concerning
the Court Constitution (sheet of state of the Republic of Indonesia 2003 number
98, Additional Gazette Republic of Indonesia Number 4316), Invite-
Invite Number 48 Year 2009 on the Power of Justice (State Sheet
Republic of Indonesia 2009 Number 157, Additional State Sheet
Republic Indonesia Number 5076);
5. AMAR RULING
PROSECUTING,
Restating the applicant is not acceptable;
So it was decided at a Meeting of Judges on the day
Tuesday the one February year of the year two thousand eleven by The nine Judges
The Constitution made up, Moh. Mahfud at its point as a following:
The House submitted fully to the related Court consideration
with legal standing (legal standing) the applicant;
The provisions of temporary termination for any state official/public official
being the accused is a proper and proportionate setting
to keep that image positive both against the institution and public office
so the performance of the institution concerned is not interrupted with the status
the suspect of an area chief and/or deputy regional chief;
The respectively as Members with
47
accompanied by Ida Ria Tamheap, as the Panitera Replacement, attended by
The applicant/her ruler, the Government or the representing, the People's Representative Council
or which represents, and the Related Party or the representing.
CHAIRMAN,
ttd
Moh. Mahfud MD
MEMBERS,
ttd Achmad Sodiki
ttd Harjono
ttd
Ahmad Fadlil Sumadi
ttd
Muhammad Alim
ttd Hamdan Zoelva
ttd Maria Farida Indrati
ttd
M. Akil Mochtar ttd
Anwar Usman
PANITERA REPLACEMENT
ttd Ida Ria Tamstockpile
