Test The Material Constitutional Court Number 65/puu-Viii/2010 2010

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 65/PUU-VIII/2010 Tahun 2010

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Microsoft Word-PUU_TELAH_BACA 65 VERDICT Number 65/PUU-VIII/2010 for the SAKE of FAIRNESS UPON the DIVINITY of the ONE TRUE GOD of the CONSTITUTIONAL COURT of the REPUBLIC of INDONESIA [1.1] Are checked, prosecute, and disconnected things of the Constitution on the first and last levels, dropping a verdict in the case of application for Testing Act No. 8 of 1981 on the law of criminal procedure against the Constitution of the Republic of Indonesia in 1945, proposed by : [1.2] name: Prof. Dr. Yusril Ihza Mahendra;. Place/date of birth: 5 February 1956 in Belitung; Address: Jalan Karang Asem North Number 32, Mega Kuningan, South Jakarta; Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-– the applicant; [1.3] Read the petition of the applicant; Hearing a description of the applicant; Examine the evidence of the Applicant; Hear expert information of the applicant; Hearing and reading the affidavits from the Government; Hear and read the affidavits of the House of representatives; 2. SIT the MATTER [2.1] considering that the applicant submit an application which is then registered in the Registrar of the Constitutional Court (hereinafter referred to as the clerk of the Court) on Tuesday 19 October 2010 with registration of case Number 65/PUU-VIII/2010, that has been fixed and accepted at the Registrar of the Court on December 2, 2010, outlining things as follows: 2 i. Constitutional Court of Authority 1. The applicant may invoke the Constitutional Court (MK) conducts testing against article 1 figure 27 and Figure 26 juncto Article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a Act No. 8 of 1981 on the law of criminal procedure (CODE of CRIMINAL PROCEDURE) against article 1 paragraph (3) and article 28D paragraph (1) of the CONSTITUTION of 1945; 2. The provisions of article 24C paragraph (1) the CONSTITUTION of 1945 juncto article 10 paragraph (1) letter a Act No. 24 of 2003 on the Constitutional Court (law COURT), mentions that one of the powers of the Constitutional Court is conducting a testing legislation against the Constitution of the Republic of Indonesia in 1945 (UUD 1945); 3. Article 7 of the Act No. 10 of 2004 concerning the formation of Legislation, stating that in a hierarchical position of the Constitution is higher than the law. Therefore, any provision of the Act should not be contrary to the Constitution (constitutie is de hoogste wet). If there is a provision in the legislation that conflicted with the Constitution, then that provision can be petitioned to be tested through the mechanism of testing law; 4. Based on the above, the applicant argues that the Constitutional Court is authorized to check and disconnect the test application this Act. II. The position of the law (legal standing) the applicant 1. That Article 51 paragraph (1) of the ACT the COURT said that "the applicant is a party which considers the right and/or authority konstitusionalnya harmed by the enactment of the Statute", in which the letter a mentions "the individual citizen of Indonesia". Next in the Description of article 51 paragraph (1) it is said that the definition of "constitutional rights" is "the rights set forth in the Constitution of the Republic of Indonesia in 1945". 2. That relates to this petition, the applicant asserts that the applicant have constitutional rights regulated in the Constitution, i.e. when declared as a suspect has the right to get treatment in accordance with the principles of due process of law as a consequence of the alleged Republic of 3 Indonesia as a country of law, as set forth in article 1 paragraph (3); and the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law, as set forth in section 28D subsection (1); 3. That the applicant assumed the applicant's constitutional rights are regulated in the Constitution as outlined in Figure 2 above, has been adversely affected by the enactment of the legislation, namely Act No. 8 of 1981 on the book of the law of criminal procedure (CODE of CRIMINAL PROCEDURE) (hereinafter the LAW 8/1981), specifically Article 1 point 27-26 and numbers associated with article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a. Sound more information from these articles are as follows Figure 1: section 26 "Witness is a person who can provide information to the interests of the investigation, prosecution and the judiciary about a criminal cases he heard himself, he sees himself and he experienced"; Article 1 point 27 "of witnesses is one tool evidence in criminal cases in the form of information from witnesses about a criminal event he heard himself, he sees himself and he experienced with the mention of his reasons that" Section 65 "a suspect or the accused has the right to dress and ask witnesses and or someone who has special skills in order to provide information that is auspicious for him" article 116 paragraph (3) in the examination of the suspect is asked whether he wants he heard witnesses who can profitable for him and if there is then it is noted in the news event. Article 116 paragraph (4) in the case referred to in subsection (3) the investigator is obligated to call and examine witnesses;

4 Section 184 subsection (1) is a valid instrument of evidence: a. witnesses; 4. That at the time of applying for it, the applicant's status as a suspect the perpetrators of the crime of corruption has been established based on the Director's Investigation Warrant Investigation Attorney General Special Youth Crime Number Print-79/F 2/Fd. 1/06/2010, dated June 24, 2010, in violation of article 2, article 3 and article 12, subparagraph i of the LAW Number 31 of 1999 juncto ACT Number 8 of 2001 juncto Article 55 paragraph (1) the book of the law of criminal law (CRIMINAL CODE) (evidence of P4). The applicant is alleged to have done criminal acts of corruption "charges an access fee and the cost of the reception Country instead of taxes (PNBP) on the system of administrative legal entities the Department of Justice and human rights of INDONESIA". The Director of the Investigation on the Young Attorney General Crime, the Attorney General's Office, Arminsyah, has delivered a press information to the public on June 29, 2009 that the penalty imposed on the Applicant is a "life sentence" (evidence for P5). This statement is even delivered to the public before the applicant himself was called upon to review by investigators. The applicant argues the press information is part of the Attorney General opinion raising can be cornering the Applicant; 5. That the applicant considers the designation as a suspect criminal acts of corruption with a maximum penalty of life imprisonment is something very serious and tendensius that concern the dignity, good name, and the dignity of the applicant and the applicant's entire family. With apologies to the Tribunal of judges of the Constitutional Court of the noble, allow the applicants submit that the applicant is a State Administration Law the Faculty of law of the University of Indonesia, academics, and politicians who had been a member of the House of representatives, the people's Consultative Assembly, twice as Minister of Justice and human rights, one time Minister of the Secretary of State of the Republic of Indonesia, and various other public office. The applicant is also known to the people of Indonesia never officially became a candidate for the Presidency of the Republic of Indonesia and has been endorsed by the plenary meeting of the people's Consultative Assembly General Session in 1999.

5 the applicant is also widely known as the former Chairman and now Chairman of Shura Assembly of the Crescent Star Party, a party that is rooted in Islam; 6. That if the Applicant was sentenced to a day just due to charges of violating article 2, article 3, and article 12 of Act No. 31 of 1999 regarding criminal acts of Corruption juncto Act No. 20 of 2001, then the political journey of career Applicants will be covered immediately and for all. So many laws in the Republic of Indonesia which requires someone who had undergone criminal with a penalty of over five years, he is not permitted to occupy any State Office. Never ran into the President, ran into the head of the village is prohibited by law. The fate of the applicant will be much worse than with the fate of the former Deputy Prime Minister of Malaysia Anwar Ibrahim, which though mistreated with the imprisonment for 8 years, but when free, he still allowed to establish a new political party and then was elected again as a member of Parliament, and is now the Chairman of the Opposition (Opposition) in the Parliament of Malaysia; 7. That based on the Director's Investigation Warrant Investigation Attorney General Special Youth Crime Number Print-79/F 2/Fd. 1/06/2010, 24th of June 2010, the applicant has repeatedly called for inspection as Suspects with various summonses and the last is the summons Number SPT-2914/F 2/Fd. 1/06/2010-14 October 2010 (proof P6). Each time the examination take place dozens of print and electronic media journalists in and abroad had coverage at the Roundhouse, the Attorney General's Office indicate that with this case, the applicant has now become a public spotlight on both domestic and international (proof P7). This case has been the attention and concern of various international organizations, including the Asian-African Legal Consultative Organization headquartered in New Delhi and the International Bar Association, based in London. Some Parliament members in ASEAN countries also come to Jakarta to ask things that occur at the center of the Applicant;


6 8. That as good citizens, the applicant comply with the law throughout its implementation and legal norms used does not conflict with higher legal norms and is contrary to the moral norm of universal. Applicant present meets the calls investigators, although when it rejected the validity of the Applicant Hendarman Supandji as Attorney General and did the resistance against him, and also the President of the Republic of Indonesia against lifting it, among other things through this Court; 9. That the only two times the applicant can not be present in the examination with legitimate reasons, i.e. one suffers pain (oral surgery), and once again was unable to due to the conflict of her time trial docket application testing Act No. 16 of 2004 about the Prosecutor's Office of the Republic of Indonesia, the applicant proposed in the Constitutional Court. Both valid reasons have been presented officially by mail and can be understood and accepted by the investigators. During the examination, the applicant has shown the attitude of koperatif. There is no question that Investigators are not the applicant. But if there are the applicant's constitutional rights are violated by the Investigators and Prosecution apparatus, then it is the right of an applicant to perform resistance over the waiver of constitutional rights it. This step the applicant do in line with the commitment of the applicant to participate build tegaknya the State of the law of the Republic of Indonesia; 10. That all forms of resistance that the applicant do through lawful and constitutional, including doing a test application for judicial review against the laws that now the applicant would convey once again to the Constitutional Court. The applicant therefore rejects the opinion by raising while the parties, that the resistance that drove the ways in which konstutusional as "unethical" and even "justifies all means to avoid incoming bui" such pronounced intellectual two figures by some regarded as an influential intellectual in this country, Professor Franz Magnis Suseno and Professor Azyumardi Azra (proof P8); 11. That during the review process progresses, the head of the center of information law (Kapuspenkum) Attorney General's Office had been announced to the public that the 7 Investigators had called and asked for a description of the 27 witnesses who all incriminating the applicants. A number of experts necessary to clarify things that disangkakan to the applicant also has been and is being checked for Attorney General. In the midst of the ongoing examination, the Attorney General's Office has announced that the results of the checks have been done, they've got enough evidence to ask the applicant as the defendant to the Court (proof P9); 12. That the applicant argues was the authority of Investigators to call and examine witnesses and experts who are substantially will weigh the petitioner to prove their allegations. But the opposite is also the applicant's rights as a suspect to defend himself and deny the witnesses which the applicant, among other damning with elicit ways favorable witnesses, who according to reasonable consideration of the applicant can be denied or dismissed the remarks damning witnesses called and checked on the initiative investigators. The applicant obviously, according to the applicable law, not be in a position that can assess or convey any objections against whom the witnesses are called and examined by Investigators; 13. That on the contrary, the applicant argues that the process of investigation must be conducted in a fair and balanced with upholding the applicant's constitutional rights guaranteed by the Constitution, including recognition of the principle that applies universally, that is, the principle of presumption of innocence (presumption of innocence). The examination will take place in a fair and balanced as well as reverence for the principle of presumption of innocence will be realized, if suspects to ask Investigators in order to summon and examine witnesses benefit Applicants by without investigators, Investigators have the right to assess and convey the mind whether a witnesses deemed beneficial by the applicant that is relevant or not with the case. If the applicant argued that the favorable witnesses were simply not profitable, even detrimental, then for what the applicant asked that the witnesses are called and examined;

8 14. That as Investigators have the freedom, even has the right to use force against anyone calling that they make as a witness incriminating, then the appellant as a suspect, for the sake of fairness and balance, of course also reserves the right to request the called and examined witnesses. Investigators have no right to assess and convey objections to who witnesses the applicant considered an auspicious witness it. Investigators are also not entitled to refuse on the grounds that the witnesses who, according to the applicant, thus it will be profitable will be detrimental to the applicant. The investigator is obliged to summon and examine witnesses that benefit it. The principle of balance in the examination of that guaranteed in the International Covenant on civil rights and politics of the UNITED NATIONS which has been ratified by the Government with Act No. 11 of 2005; 15. That Investigators have asked in the examination to the applicant, if the applicant desires it hears witnesses and experts that can benefit the applicant, subject to the provisions of article 65 juncto Article 116 paragraph (3) of the CODE of CRIMINAL PROCEDURE. The applicant has answered that question by saying "Yes" and Investigators noted that answer in the news of the proceedings (BAP). The applicant through the power of the law later delivered in writing the names of the experts and witnesses the applicant, favorable and ask the Investigators to call and check out the experts and witnesses beneficial, in accordance with that set forth in Article 65 and article 116 paragraph (3) and paragraph (4) of LAW 8/1981. Favorable witnesses the applicant as contained in a letter signed by the applicant's legal advisor is Megawati Sukarnoputri, h.m. Jusuf Kalla, Kwik Kian Gie, and Susilo Bambang Yudhoyono (proof P10); 16. The applicant realized that asking for favorable witnesses and to be called is a right of the applicant, and the investigator is obliged to summon favorable witnesses that, bearing in mind Article 116 paragraph (4) of LAW 8/1981 contains rules that are imperative. Of course a favourable witnesses it was the witnesses according to the consideration of an applicant's no dependencies with a criminal disangkakan 9 to the applicant. Demand for elicit favorable witnesses, according to m. Yahya Harahap, must be carried out with reasonable consideration, not with the intent to slow the course of the examination, or make do with the bad to mempermain-play examination (Yahya Harahap: discussion of the problems and the application of CODE of CRIMINAL PROCEDURE, Jakarta: Ray Graphics, Second Edition, 2001, p. 138). According to Harahap, if any make bad like that, for example, the suspect asked for called and checked 100 witnesses a lucrative hard-to look for where the address. While according to reasonable consideration, 100 witnesses that benefit it has nothing to do with the case, then it is bad faith to have made sport of such examinations can disqualify the obligation of Investigators to call and check them as provided for in article 65 juncto Article 116 paragraph (4) of the CODE of CRIMINAL PROCEDURE; 17. That in fact, the applicant does not file a 100 witnesses who benefit are difficult to look for where its existence. The fourth Applicant ask for beneficial witness to be called and checked it the address is clear and easy to search. According to reasonable consideration of the appellant's fourth witness, that benefit was indeed relevant to explain various things related to alleged criminal acts of corruption that are charged to the applicant. Three of the four witnesses the Applicant requested a profitable (Jusuf Kalla, Kwik Kian Gie, and Susilo Bambang Yudhoyono) ever together with the applicant became Minister of the national unity cabinet led by President Abdurrahman Wahid. Megawati Sukarnoputri when that became Vice President. Jusuf Kalla became Minister of industry and trade who often complained about the slowness of the attestation of the company so as inhibit investment in industry and trade. Susilo Bambang Yudhoyono when it becomes Minister of mines and energy who is also concerned with investment through various companies incorporated the law of Indonesia who want to set up by domestic and foreign entrepreneurs. Kwik Kian Gie that time Coordinating Ekuin is responsible for coordinating the efforts of the acceleration of national economic recovery and deal with the cooperation with the IMF and the World Bank. The applicant as


10 General Chairman of the Crescent Star Party, signed the letter Susilo Bambang Yudhyono's nomination as a presidential candidate RI to the Electoral Commission, so he is eligible to become a candidate. Susilo Bambang Yudhoyono was elected President and then the applicant became a State Secretary in the Cabinet of Indonesia (KIB) a shepherd; 18. That the criminal act that is alleged to have carried out the applicant, namely the corruption charges mandatory fee PNBP Sisminbakum, is not a purely private acts, but attached with the title requesters when the alleged crime that occurred, that is, in the applicant's position as Minister of Justice and human rights of Republic of Indonesia. Thus, the applicant argues that asking for the presence of favorable witnesses, former Minister, former Vice President and even President is something that is natural and it is not making this up. There need be no presumption that if the President is asked to witness favorable, then it will be a precedent, then each suspect will ask the witnesses presented by the President to be profitable. A Bread Seller motor cycling in Makassar crashed into people on the street to die and asked President Susilo Bambang Yudhoyono witnessed the profitable, certainly is not a reasonable request. A request like this, compulsory rejected by Investigators because it can be dikualifikasikan as a far-fetched request and is based on bad faith to complicate the course of the examination; 19. That besides reason reasonableness, the applicant argues that the four requested name called and examined as a witness that benefit it, because the task and his post when it is, it does have a relation with the crime disangkakan to the applicant. A fourth witness who benefit above is present in the Cabinet headed by President Abdurrahman Wahid in early May 2000, when the Government listened to the proposals of the National Economic Council, led by Emil Salim. One of the things discussed in the hearing is the slowness of the Government, in this case the Ministry of law and legislation in authorising the establishment of a limited liability company (PT), which resulted in sukarnya the Government of Indonesia speed up the process of national economic recovery 11 due to the crisis in 1997. The Government when it was in cooperation with the International Monetary Fund (IMF) and the World Bank in the framework of the handling of the crisis and the recovery of the economy, also criticized the slowness of it. IMF and World Bank holds no economic recovery will probably happen if there is no investment. While investment is hampered by the slow Government confirms the establishment of the company. In Singapore the passage that takes only one day. Malaysia and Hong Kong in just two days. While in Indonesia took more than a year without any certainty; 20. That the four names mentioned above are also present in the Cabinet when President Abdurrahman Wahid give referrals that considering the absence of post 1999/2000 STATE BUDGET to build a network of information technology in order to accelerate the process of endorsement of the company, then the construction of the network was handed over to private sector to make investments to build it. Finally the Minister of Justice and human rights decided to let information technology network that is built with the agreement of the Built, Operate, and Transfer (BOT) for 10 years. The project was completed and started operations in January 2001 which was inaugurated by Vice President Megawati Sukarnoputri. In the Government's Letter of Intent to the IMF on 21 May 2000, which among other things signed by Kwik Kian Gie, the Government of Indonesia expressed commitment that the Government will address the problem of delay endorsement of the company (company registration) within one year (proof P11). It turns out that the problem of delay was already insurmountable Government in less than a year. This is the first E-Government project in the country that is considered a success in delivering public services and gain the recognition of the international standard ISO 9001-2000 (Evidence P12); 21. That the economic impact of the acceleration of the company's endorsement was indeed a very great meaning for the country. For 7 years the acceleration through information technology networks are built and operated by the private sector, had more than 6000 new companies passed to the industrial sector, mining, and services only, not accounting for the company's endorsement in other sectors. In the seven years that, from this sector 12, Central Bureau of statistics reported that the country obtains added value income of 958 trillion rupiah, with labor is absorbed as much of 4.7 million people (proof P 13). This figure far exceeds the cost of the Government used in dealing with the economic crisis of 1997, which according to reports Finance Minister Budiono in Mutual Cabinet (2002) was of 632 trillion rupiah. Attorney General's Office with the count himself stated the cost of the access fee Sisminbakum which does not put the State Treasury, so it has led to losses of State of 420 billion rupiah. This number is the gross income of the entire company's endorsement of the applicant through the information technology network services Sisminbakum for 7 years, instead of the net profit of the company private; 22. That the Minister of Justice and human rights Andi Mattalata, in his letter to the Minister of Finance on November 27, 2008 has requested supplementary budget funds amounting to 10 billion rupiah to finance the operational Sisminbakum just for one month (December) 2008 only. The request was filed after the entire Mattalata Minister Sisminbakum equipment seized by Investigators for the Prosecution evidence, and accounts of SRD PT Bank Danamon and BNI on frozen at the request of the Attorney General. The Ministry of Justice and human rights who do borrow use the seized evidence must bear the entire cost of operating its own Sisminbakum, which according to the request of the Minister Mattalata is of 10 billion rupiah per month. With this figure, then the STATE BUDGET funds will be used by the Ministry of Justice and human rights for 7 years (84 months) for the cost of operating Sisminbakum is 840 billion rupiah. This figure has not yet calculated how much investment to build the project if done alone by the Government. Obviously, I pray that the State money used is doubled the magnitude of the alleged losses, according to the State Attorney General's Office of 420 billion dollars, because the money was not deposited as PNBP. While the BPKP after audit investigation stating can not conclude whether there are elements of the country's losses or not in this matter;

13 23. That all the applicant's understanding of the project, which was built with the system BOOTS, the entire capital development and operations are handed over to the private sector, it is not possible the levy fee gets charged state as PNBP. The advantages of the country is from lancarnya the public service, and the cession of all assets of the project to the State after the BOT agreement ends. While on the levy fees by the private sector that are subject to tax, not entirely taken the country into a State of acceptance is not the tax (PNBP). There are dozens, maybe even hundreds of BOT projects around the country, but this is the only BOT Sisminbakum deemed by the Attorney General's Office as a corruption. The applicant would like to point out that all the land belongs to the State in Senayan and Kemayoran cooperated in this Government, the Secretariat of State, with the BOT system by private parties. Similarly, some toll roads across the country, including some ports container; 24. That this Decision is enforced through Sisminbakum 4 the Minister of Justice, namely the applicant, Baharuddin Lopa, Marsilam Simanjuntak, and Hamid Awaludin. The decision of the Minister on saving the applicant is one form of legislation that is legally valid, as provided for in Act No. 10 of 2004 concerning the formation of legislation. But later on when Susilo Bambang Yudhoyono became President, the enactment of Sisminbakum it improved by legislation, namely Act No. 40 year 2007 on limited liability company (hereinafter referred to as LAW 40/2007). Article 9 of the Act reads "to obtain a decision of the Minister regarding an endorsement of the company's legal entities referred to in article 7 paragraph (4), founder of together applying information technology services through the system administrative agency law electronically to the Secretary." (Proof P14). Administration System (Sisminbakum) of the legal entity which is enacted by this Act, if the applicant read carefully the discussion of the Bill on the treatise of a limited liability company in the House (p. 428) is the same as the Applicant Sisminbakum and three other HUMAN RIGHTS and Justice Minister imposed earlier by the decision of the Minister, which is considered the Attorney General's Office as a corruption of it. The applicant


14 if the applicant argues, the Minister who acted as law maker should be punished for making a decision of the Minister, then President Susilo Bambang Yudhoyono and the whole legislative period 2004-2009 as law maker maker ACT 40/2007 on limited liability companies also should be punished; 25. That when Sisminbakum imposed by statute, the applicant no longer be a good Minister, Minister of Justice and human rights as well as State Secretary. Minister of Justice and human rights when it ruled by Andi Mattalata. The question that has always existed in the mind of the applicant is, if indeed it was corruption Sisminbakum, why the President and the PARLIAMENT strengthened its enforcement by law? All the arguments, all the legal documents such as this has the applicant gave to Investigators, but they were rejected with the reason is irrelevant. Therefore, the applicant argues should the Ministers, Vice President, and President of the equally decide that policy, prompted his statement as witnesses favourable to clarify things. Description the Susilo Bambang Yudhoyono signed the ratification ACT 40/2007 also needs to be heard. What is the reason the President improve enforcement of legal norms Sisminbakum who was accused by the Attorney General as the corruption by law? Sisminbakum start solved because feenya access fee is considered corruption by the Attorney General's Office dated October 31, 2008, while the LAW 40/2007 confirmed President Susilo Bambang Yudhoyono on August 16, 2007; 26. That the applicant argues, the testimony of Megawati Sukarnoputri and Susilo Bambang Yudhoyono will benefit the applicant. They will hopefully explain the basic problems attributed to the applicant, which is why access fee a fee charged by the private sector build and operate information technology network "Sisminbakum" with the BOT system was not charged as an acceptance of the country instead of taxes, according to investigators so that it has been detrimental to the Applicant countries and the financial responsibility as perpetrators of criminal acts of corruption. Whereas, according to article 2 of Act No. 8 of 1997 about PNBP (proof P 15), the authority sets the type and magnitude of tariff services 15 PNBP it isn't a technical Minister authority, in this case the Minister of Justice and human rights, but it is the President's authority in a way set him through Government Regulation (PP), at the suggestion of the Minister of finance. All the knowledge of the applicant, during the Megawati Sukarnoputri served as President of never entering the access fee fee Sisminbakum as PNBP; 27. That President Susilo Bambang Yudhoyono has four times the published Government Regulation (PP), i.e. the PP Number 75 in 2005, PP number 19 of 2007, PP Number 82 in 2007) that modify various types of services and the magnitude of the rate imposed PNBP prevailing in the Ministry of Justice and human rights (now the Ministry of Justice and human rights) and never enter the access fee the use of information networks are built and diopreasikan private (Sisminbakum) as PNBP. President Susilo Bambang Yudhoyono recently set an access fee as PNBP through PP Number 38 in 2009, 3 June 2009 (proof of P 16). PP is derived after the former Directorate General of common law Administration (AHU) Prof. Dr. Romli Atmasasmita sentenced guilty by the South Jakarta District Court of violating Article 3 of Act No. 31 of 1999 juncto Act No. 20 of 2001, i.e. abuse of authority splits the money belonging to the Ministry of Justice Employee Cooperative (KPPDK) and the Directorate General of the AHU. The verdict was not yet inkracht because now he was waiting for the ruling of the Supreme Court of Cassation; 28. That the applicant argues, if Megawati Sukarnoputri and Susilo Bambang Yudhoyono explained his testimony that before the year 2009, the cost of access is not PNBP Sisminbakum, then that information will benefit the applicant as a suspect. If the cost of the access fee is not charged should PNBP Ministry of Justice and human rights, but rather charged by the private sector to build and operate a BOT agreement and charges that are subject to tax (VAT), the allegations against the appellant as the perpetrator of the criminal offence of corruption, it is not legally grounded. Acts attributed to the applicant as a suspect or Defendant later, according to the forecasts of the applicant, does exist, but the Court will judge the deed was not a criminal offence (ontslaag van rechtsvervolging allei).

16 Thus, there is still hope for the applicant to be free from the penalty of life imprisonment due to alleged corruption deeds that have been done of the applicant; 29. That in fact, the applicant's request to summon and examine witnesses the lucrative fourth have denied publicly by Investigators Andi Herman and communicated to the public (Proof P18). The refusal was later confirmed again to the public by the Incumbent (Plt) Attorney General Darmono, the young Attorney General Special criminal offence (Jampidsus) m. Amari and Chief of the center of information law (Kapuspenkum) Attorney General Babul Khoir Harahap and published in various print and electronic media and the press in areas (Evidence P19). The reason for their refusal on the dotted-starting from just their judgment that the favorable witnesses that the applicant asked to be called and checked in accordance with Article 65, juncto Article 116 paragraph (3) and paragraph (4) of the CODE of CRIMINAL PROCEDURE is not relevant to the investigation of things that allegedly carried out the applicant. The officers of the Attorney General's Office was even expressly says that the favorable witnesses the applicant requested that does not meet the criteria as a witness, that is the person who can explain a criminal act that he "heard yourself, see for yourself and experience it yourself". Amari Jampidsus even said that the favorable witnesses the applicant asked for it "at best will say" testimmonium de auditu "i.e." the people, "he said. A description like that in his opinion "cannot be used as evidence in the trial court" (proof P20); 30. That since the request to summon favorable witnesses that we've done over and over, but still never met, then the two of them, namely h.m. Jusuf Kalla (proof P20) and Kwik Kian Gie (proof P21) ended up with his own gave affidavits about their testimony about a variety of things related to Sisminbakum, based on what they know. The information was submitted to the Attorney General's Office Investigators. The applicant has requested that the description of the second suspect entered into the docket, and again asked that they called and checked for loaded in the News Event 17 examination (BAP), according to their willingness that is mentioned explicitly in the description. The request was contained in a BAP on examination the applicant on 29 November 2010. However, the applicant has not yet certainty whether that information will be contained in the docket or not. The applicant also did not get a definite answer to whether willingness h.m. Jusuf Kalla and Kwik Kian Gie to be checked and loaded in BAP will be met by the Attorney General's Office Investigator; 31. That the applicant's Right to request the information it hears witnesses deemed profitable Applicants based on the provisions of article 65 juncto Article 116 paragraph (3) and paragraph (4) of LAW 8/1981, and rejected by the Investigators and the officers of the Attorney General's Office, clearly detrimental to the applicant's constitutional rights that are guaranteed by the Constitution. Their reason for denial was apparently based on the provisions of article 26 1 number CODE of CRIMINAL PROCEDURE of "witness" and the provisions of article 1 point 27 of LAW 8/1981 of "witnesses" when associated with the provision of article 65 juncto Article 116 paragraph (3) and (4) and Section 184 subsection (1) letter a of LAW 8/1981. If the witness dikualifikasi as the person who "see for yourself, hear yourself and experience the onset of a criminal event", then there are chances that Megawati, Kwik Kian Gie, Jusuf Kalla, and Susilo Bambang Yudhoyono not qualify it. While the "eyewitness" dikualifikasi as a description of people who "see for yourself, hear, and experience their own" criminal acts which ensued, then a fourth likewise did not see for yourself, hear yourself or having its own deed "alleged corruption" the applicant to do. If so – quod non--then it is understandable if Jampidsus Amari said that "they are of no use, and cannot be used as evidence in court." In fact, it can still be questioned, how broad the scope of the meaning of a witness who must be dikualifikasi "see for yourself, hear yourself and experience it yourself" it. Because, in the end the court authorities consider it in ten aanzien van het recht; 32. That the four witnesses who benefit, namely Megawati Sukarnoputri, Jusuf Kalla, Kwik Kian Gie, and Susilo Bambang Yudhoyono, attended the Councils Cabinet early May 2000 at the State Palace, Merdeka Road


18 number 1, North Jakarta. Kwik Kian Gie signed a Letter of Intent with the IMF on May 17, 2000 in the Office of the Coordinating Minister for Ekuin, the Field of East Fort No. 1, Jakarta. While the criminal acts of corruption that allegedly carried out the applicant begins with meetings to marker signing and inauguration Sisminbakum in October 2000 and January 2001, all of which took place in the Ministry of Justice and human rights the way Rasuna Said, Jakarta. So there is indeed a difference locus delicti and tempus delicti between two events. Despite the favorable witnesses is not "see for yourself, hear yourself and have your own" criminal acts which the applicant allegedly did, but their description regarding all matters relating to Government policy and the setting is very important and relevant PNBP to be heard. Isn't that their information can eventually be seen by judges as knowing something with "see for yourself, hear yourself and experience it yourself" are staatsrechtelijk and administratiefrechtelijk?; 33. That, however, turned the request the applicant by Investigators to listen to the description of the witnesses that this lucrative, and likely turned their description as a legitimate instrument of evidence as set forth in section 184 subsection (1) letter a of LAW 8/1981 has been detrimental to the applicant's constitutional rights to be treated fairly before the law. Therefore, it remains the Applicant pleaded the testing against the norms set forth in article 1 the numbers 26 and 27 juncto Article 65 Article 65 juncto juncto Article 116 paragraph (3) and (4) jo Section 184 subsection (1) letter a of LAW 8/1981. It is deemed necessary to avoid multi-interpretation of nature that can lead to legal uncertainty (rechtsonzekerheid) of the rule that was conceived by the articles in question; 34. That such a constitutional harm put forward above, indeed not only to have occurred on the applicant, but may also have been a detriment to so many people who had been forced to crouch in prison because their request to the Investigator so that favorable witnesses are called and examined have been rejected based on the definition of a witness as set forth in article 1 the numbers 26 and 27 of ACT number 19 8/1981. A suspect or accused who is begging to be called and examined as a witness to some of the people who benefit, because the suspect or the accused deny the charges or with the supposition put forward an alibi, failed to prove the alibinya because of favorable witnesses are not "see for yourself, hear yourself and have your own" criminal acts committed by the suspect or the accused. 35. That for example someone named Ahmad, suddenly arrested on charges of robbing and killing the owner of a gold shop in new market Friday afternoon, October 22, 2010 around the maghrib. There are ten witnesses who claimed to see Ahmad do a robbery and murder. A weapon belonging to Ahmad left behind in the store. Fingerprint Ahmad also found there. When it's this, Ahmad was not necessarily the real face of the police. But Ahmad denies committing robbery and murder. On Friday afternoon, October 22, 2010 he became the priest of the maghrib in Pondok Indah Mosque and after it gave kultum to the jama'ah. Ahmad ask police to the mosque caretaker and some worshipers who heard kultumnya it examined as witnesses favourable to support truth alibinya. But investigators refused for reasons not relevant, because the witnesses were not favorable "see for yourself, hear yourself and experience it yourself" robbery and murder of Ahmad are doing in the market Recently, because at the time of the robbery and murder case, they were in the Pondok Indah. If the definition of a witness like this, almost certainly, Ahmad would be punished, perhaps even with the death penalty. Ahmad will be the victims of arbitrariness and law enforcement apparatus is treated unfairly and tyrants. As said O.C. Kaligis Ph.d. dissertation in University of Padjajaran, in fact, to ask a witness to that benefit not only often rejected by Investigators, but often ditakut-takuti by investigators, so that such witnesses failed to be called and checked. (O.C. Kaligis, a top legal protection of the rights of the suspect and Convict, Bandung: PT Alumni, 2006, pp. 249-250);

20 36. That the definition of witnesses and information that is formulated in article 1 point 27-26 and numbers that have led to arbitrariness and encourage law enforcement agencies to apply the law by violating the constitutional rights of the suspect or the accused, which resulted in those innocent people, let alone their poor and ignorant, forced to undergo imprisonment, imprisonment for life, and even forced to undergo the death penalty. Circumstances such as these really terrible can happen in the country the law of the Republic of Indonesia. In the experience of the applicant as Minister of Justice and human rights are often transitions do inspections to various agencies pemasyarakaran in the whole country, the applicant has found dozens of cases of murder and robbery convict who told me that they are not murderers and robbers, but they were unable to present witnesses benefit as provided for in article 65 and article 116 paragraph (3) and paragraph (4) of LAW No. 8 of 1981 on CRIMINAL PROCEDURE CODE. Their witless, innocent and poor, so not able to bring a persistent legal advisor to defend them. They are treated arbitrarily by the law enforcement agencies of his own people, not the nation's law enforcement in the Netherlands first colonial era; 37. That refers to the Constitutional Court's ruling since the verdict Number 006/PUU-III/2005 of 31 May 2005 and decision number 11/PUU-V/2007 20 September 2007 and subsequent rulings, it turns out that the loss of rights and/or constitutional authority as intended by article 51 paragraph (1) of the ACT the COURT must meet five conditions, namely: a. the existence of rights and/or constitutional authority the applicant granted by the Constitution; b. rights and/or the constitutional authority by the applicant are considered impaired by the enactment of legislation which petitioned testing; c. the constitutional harm must be specific (Special) and the actual potential or at least according to the reasoning reasonably certain will happen;

21. the existence of a causal relationship (causal verband) between the losses in question and the enactment of legislation which petitioned testing; e. of the possibility that by dikabulkannya the petition, then the constitutional losses as postulated would not or no longer occur; The five absolute terms as formulated in the above ruling, which must be met in the test legislation against the Constitution, the applicant believes to have been met with complete-complete, as described below: the first Requirement is the applicant's qualifications as citizens of the Republic of Indonesia, to act as the applicant as defined in article 51 paragraph (1) of the ACT, as the COURT Applicant had constitutional rights regulated in the Constitution; The second requirement with the enactment of a law the rights and/or constitutional authority the applicant were harmed. With the introduction of Article 1 point 27-26 and numbers associated with the provision of article 65 junct Article 116 paragraph (3) and paragraph (4) of LAW No. 8 of 1981 on the applicant's constitutional CRIMINAL PROCEDURE CODE, the losses are real and bright-lit. While the enactment of the provisions of article 184 paragraph (1) letter a, according to reasonable reasoning something that very likely will soon occur; The third requirement, the specific nature of the constitutional harm. Investigators have examined the applicant as a suspect in a manner that was unfair and arbitrary, distinctively infringe the applicant's kosntitusional. The refusal of the calling of witnesses is profitable in the process of examination of an applicant is a specific disadvantage Applicants; The fourth requirement, the loss incurred due to the enactment of the Bill is requested. Definitely let that due to the enactment of the provisions of article 26 and numbers figure 1 27 of ACT No. 8 of 1981 on CODE of CRIMINAL PROCEDURE, Investigators and the top brass of the Supreme Kejaksaa has performed the action unjust and arbitrary valid constitutional result in losses of the applicant;


22 Fifth Constitutional Terms, such losses will not occur again if the petition is granted. With dikabulkannya this petition, then the arbitrary deeds committed by Investigators and officers of the Attorney General's Office who did not want to call favorable witnesses the applicant will not happen again. With dikabulkannya this petition, then the Investigator, Jampidsus and Plt Attorney General is obligated to call and check out Megawati Sukarnoputri, Jusuf Kalla, Kwik Kian Gie and Susilo Bambang Yudhoyono as a favorable witness Applicant requested under article 65 juncto Article 116 paragraph (3) and paragraph (4) of LAW No. 8 of 1981 on CRIMINAL PROCEDURE CODE. Although the matter has been delegated to the later applicant's District Court in South Jakarta before the Constitutional Court granted the petition for termination, then the Attorney General is obligated to pull back the docket and entering the profitable witnesses into the indictment, in order that the applicant's constitutional rights weren't violated again by Investigators and officers of the Attorney General's Office of the Republic of Indonesia; 38. That explanation above proves that the applicant (individual citizens of Indonesia) has the position of law (legal standing) to act as the applicant in the application for testing these laws. Therefore, the applicant appealed to an Assembly of Judges of the Constitutional Court, presumably in an award later stated that the applicant has the legal position (legal standing) in a pleading testing legislation in this matter; III. The reasons Are the rule (Normative) an applicant applying for a Testing article 1 Figure 27 and Figure 26 Juncto Article 65 Juncto Article 116 paragraph (3) and paragraph (4) Juncto Article 184 paragraph (1) letter a law of the Republic of Indonesia No. 8 of 1981 on the law of criminal procedure (CODE of CRIMINAL PROCEDURE) against article 1 paragraph (3) and article 28D paragraph (1) of the Constitution. 1. That the Republic of Indonesia as defined by the provisions of article 1 paragraph (3) of the Constitution is a "State of law". The framers of the Constitution that is commonly referred to as "the founding fathers" Nations explained that the Republic of Indonesia based on the law (rechtsstaat), not based upon the sheer power (Machtsstaat).

23 the mention of the word "rechtsstaat" and "machtsstaat" here indicates that the founders of the State of the RI State law refers to the concept of "rechtsstaat" in Germany. Julius Sthal mentions that there are three traits of rechtsstaat that: (a) protection of human rights; (b) the Division of powers; and (c) the Government based on the Constitution. AV Dicey formulating State law (rule of law) and the three characteristics of existence i.e. (a) supermasi law; (b) the equation before the law; and (c) the "due process of law". In the understanding of State law in an age now, then the attributes of the State of the law formulated by Stahl and Dicey were combined and generally accepted legal academics as a hallmark of the modern law of the country. 2. That related to what Dicey formulated above, due process of law is usually defined as "a fundamental constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard the government act take away one's life, liberty or property. Also a constitutional guarantee that the law shall not be unreasonable, arbitrary, or capricious ". While the word arbitrary is here taken to mean "a course of action or decicion that not based on the reason or judgement but on personal will or discreation without regards to standard rules". Emphasis against due process of law as one of the country's legal consequence that the actions of the State not only the organizer of the apparatus should be based upon the material legal norms are fair, but should also be based on the law governing procedures for the formyl enforcing the provisions of the law of material that meets the requirements of Justice. Legal norms and procedures are fair. The provisions on procedures should not be purely the arbitrator according to the tastes of the organizer of State power; 3. That the ACT No. 8 of 1981 on CRIMINAL PROCEDURE CODE are the provisions of law must reflect the presence of "due process of law" that is fair, equitable, and certainly far away from things that are arbitrators. Because of criminal law enforced by the CODE of CRIMINAL PROCEDURE that would like to bring the result of legal sanctions related to human rights such as imprisonment (which causes someone to lose their independence), 24 the seizure of property, and even criminal to death (which resulted in the loss of life of a person who can not be restored again), then the legal procedure to enforce the law and material must be not only fair, but also are certain and fair. Ketidakfairan, the uncertainty and the legal procedural injustice can lead to human rights abuses seriously, because a person can lose his independence are convicted, forfeiture of property rights even lost their lives due to the application of the law of material that is prosudural do not meet standard due process of law, legal certainty and justice; 4. That the more dangerous again if this is done in procedural law arbitrator by law enforcement officers. Actions, measures and law enforcement apparatus is not a decision based on the law and certainly kidah fair, but is done based on the taste of the law enforcement itself. But in a country of law, hukumlah who became Commander in Chief, not person-person law enforcement. This is what the United States called in by Dicey as "the rule of law not of man." The legal norms that are not definite on one side, or even the absence of the rule of law which govern the procedure in the enforcement of criminal law, not only may damage the image of the State of the law as defined by the Constitution, but also opens up opportunities for breadth-wide use of power (machtsstaat) and human rights violations. Whereas, Article 28I paragraph (5) of the Constitution regulates that "protection, promotion, enforcement, and the fulfilment of human rights is the responsibility of the State, especially the Government." Even the General CRIMINAL PROCEDURE CODE Explanation itself says that "penghayatan, the practice of human rights as well as rights and obligations of citizens to enforce justice should not be abandoned by any citizen, any organizer of a State institution, every State and civic institutions either in the Center or in a region that needs to be manifested in and by the existence of the law of criminal procedure"; 5. That when an individual defined as a suspect or defendant in a matter a criminal offence, then the individual is in fact dealing with the country. If the individual is a citizen of the country in question, then in fact he is dealing with his country's own 25. Countries through aparatur-aparaturnya is indeed authorized to enforce the law to anyone who is suspected of guilt. But on the other hand, the State apparatus is also obliged to provide protection to its citizens alone. There is no other choice when faced with this dilemma, unless the country holds fast to the principles of Justice. Because of that, Friedman says, State law should be distinguished in two categories, i.e. the State of the law in the sense of formyl, namely "organized public power", and the State of law in the sense of material i.e. "just the rule of law". The more so when the rule of law looks vaguely or less firmly so the opportunites multi tafseer tafsir are put forward, then Justice should be used; 6. That LAW 8/1981 is a product of State RI to replace Het Reglement Inlandsche Herziene (HIR) (Stb. 1941 No. 44) Netherlands East Indies colonial heritage, though updated with law number 1 Drt in 1951. Although this law was born long before the Constitution so amademen put forward human rights, but the spirit of the framers of this law has been so advanced by adopting a variety of provisions of the Universal Declaration of human rights and the International Covenant on Civil and political rights. Article 14 subsection (3e) the International Covenant on Civil and political rights (1966), reads as follows, "In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions the U.S. witnesses against him"; (In determining the alleged criminal act, everyone is entitled to the following minimum guarantees, in full equality: to check, or ask diperiksanya memberatkannya witnesses and asked the witnesses dihadirkannya meringankannya, with the same terms as witnesses memberatkannya); 7. That the above Covenant has been ratified by the Government with Act No. 11 of 2005. The applicant argues, due process of law mentioned in the Covenant that contains the principle of fairness and balance. In the examination of a suspect, Investigators


26 freely presenting witnesses incriminating. Similarly, the suspect has the right to ask for dihadirkannya witnesses in his favor, with the same terms with the incriminating witnesses. The provisions of article 14 paragraph (3) of the Covenant was indeed animates the formulation of article 65 and article 116 paragraph (3) of the CODE of CRIMINAL PROCEDURE. Even the CODE of CRIMINAL PROCEDURE step one stage further, with the requirement that Investigators summon and examine witnesses favourable to it (paragraph 4). The principle embraced by this Covenant was in line the rules contained in Article 28D paragraph (1) that contains the rule guarantees, protection and legal certainty are fair; 8. That according to save Applicant, guarantees, protection and legal certainty that the rules set in the konstitusionalnya in article 28D paragraph (1), will be realized if Article 65 juncto Article 116 paragraph (3) of the CODE of CRIMINAL PROCEDURE does not open opportunities multitafsir. As the applicants say, rules of criminal law including the rules of the law of proseduralnya, because it brings direct implications to human rights, must be firm and definitive. In the certainty that is located the existence of guarantee and protection. If a multiple rule tafsir, and uncertain, how can the rule that statutes may provide warranties and protection? Thus, the rule in the second article of the LAW 8/1981, i.e. who the witnesses who will be asked by a suspect and/or accused, of course, for the sake of legal certainty, it is not able to be questioned by investigators. Let the judges who judge whether favorable witnesses requested by a suspect and/or accused it is relevant or not in criminal cases charged. Because of the break of things, is not the authority of Investigators, but the authority of the judge; 9. That Furthermore, the rule contained in article 28D paragraph (1) confirms the existence of a fair legal certainty. What is with the interpretation that gives authority to the investigator for refusing the calling and examination of witnesses that are profitable, will guarantee and provide protection and legal certainty are fair? As has been expressed above, Justice will be realized if the investigator acting on behalf of the countries have the same right to call and examine witnesses. Investigators in carrying out his duty, 27 obliged to prove the allegation or claim. Although the system of proof in criminal procedure law we do not know the system of proof upside down, but in the framework of Justice, usual suspects and/or accused also has the right to prove his innocence, among others by listening to the description of the witnesses, including the witness favorable à de charge. If the interpretation of the saying that the investigating authorities assess and gainful witnesses refused the requested suspect and/or accused, while the suspect/defendant not entitled to judge and denying the witnesses incriminating facts, then the process of investigation will run with unbalanced, one-sided, thereby negating the principle of fair that its rules set forth in Section 28D subsection (1) of the CONSTITUTION of 1945; 10. Counteraction principle of fair in article 28D paragraph (1) of the Constitution the real-real will be visible in the formulation of conclusions the results of the investigation, the investigators made in the news of the proceedings. If BAP contains only witnesses of fact or mere incriminating witness, without the need for a profitable load of witnesses, including the witness a de charge, then it's almost certain that the conclusions of the investigation are automatically suspect incriminating. Whereas the conclusion of the results of the investigation this was indeed what was contained in the indictment is not yet final because it had to be proved in the trial, in the first step of the trial, the claim has been eliminating the principle of fair use as its rules provided for in Article 28D paragraph (1) of the Constitution. The principle of the fair must be manifest in all stages, from the investigation to the verdict of the Court; 11. That in addition to the existence of a multiple interpretation of the provisions of article 65 above juncto Article 116 paragraph (3) and paragraph (4) of LAW 8/1981 regarding the favorable witnesses as already outlined in 9 points above, other problems also pose a multi tafsir is the stage where the favorable witnesses were to be examined. The young Attorney General Crime Special m. Amari and Director of Investigation at Jampidsus Jasman Panjaitan interprets that the favorable witnesses it was not checked at the stages of investigation, but it was to be heard his statement in court. This opinion is supported by legal experts 28 criminal Prof. Dr. Andi Hamzah who firmly firmly said no favorable witness examination in the stage of investigation. Hamzah said "even not logical when the suspect asked for witnesses who relieve to the Prosecutor. It is not the task of the Prosecutor, the Prosecutor just looking for incriminating witnesses ". Almost the same opinion expressed by Dr. Indra Lubis Shanun says "Although the investigator is obligated to call a witness de charge accordingly article 116 CRIMINAL PROCEDURE CODE, but ... Investigators could not comply ". (Proof P23); 12. That on the contrary, Prof. Dr. Romly Atmasasmita., Dr. Maqdir Ismail, Dr. Firm Ocean, Mohammad Assegaf and teachers of the law of Criminal Procedure Law Faculty UI, Chudri Sitompul interprets that the favorable witnesses that can be checked at all stages of the process of enforcement of criminal law, ranging from investigation to trial in State Court, appeals, and cassation (proof's P24). The existence of the interpretation of these diverse, which beujung in the presence of the investigating authority to reject the call and examine witnesses requested favorable suspects, did away with the principle of legal certainty that its Constitution rules regulated in Article 28D paragraph (1) of the CONSTITUTION of 1945; 13. That the existence of the interpretation of a rule against ranging regulated in article 65 juncto Article 116 paragraph (3) and paragraph (4) of LAW 8/1981, eventually causing the suspect and/or accused treated are not equal before the law. Whereas the rule "equal treatment before the law" stated-firmly set in the last phrase the provision of article 28D paragraph (1) of the Constitution. There are suspect and/or accused her request for diperiksanya and witnesses he heard favorable witnesses, including a de charge at the stage of investigation, who was granted, however there are rejected by the Investigators, all of which are based on the assessment of its own Investigators. As said Dr. o. c. Kaligis, as already quoted earlier in this appeal, in fact, due to diverse interpretation of it, often at the request of the suspect was compounded and even ditakut-takuti by the investigator; 14. That rule "State laws" and "guarantee a fair legal certainty" as set forth in article 1 paragraph (3) and article 28D paragraph (1) of the Constitution violated by distinctively norms of law in article 65 29 juncto Article 116 paragraph (3) and subsection (4) if it is linked with the definition in article 1 witness numbers 26 and 27 of LAW number 8/1981. Witnesses in law 8/1981, according to the Chudri Cup, can be categorized into three types, namely (1) a witness of fact or witness events; (b) favourable witnesses; and (c) witnesses a de charge. Witness to the benefit provided for in Article 65 juncto Article 116 paragraph (3) of LAW 8/1981. While witnesses a de charge is only mentioned in the Explanation of article 116 paragraph (3) "included in the category of a favorable witness is a witness to a de charge". While what is a witness? The answer is in the article 1 the number 26 that its rules say "witness is a person who can explain the occurrence of an event of a criminal he saw himself, he heard himself and he experienced"; 15. That according to the Applicant, the definition of efficient witnesses its rules formulated in article 1 point 26 of ACT 8/1981 as expressed above, is simply irrelevant to the fact witnesses or witnesses events or incriminating witnesses. If the a contrario interpretation method is used, then the witnesses "not see myself, didn't hear myself, and not having itself a criminal event" is not a witness or could not serve as witnesses. While Article 65 juncto Article 116 paragraph (3) of LAW 8/1981 set its rules on the existence of favorable witnesses and witnesses a de charge. While both types of witnesses, it is not always viewed myself, hear, and experience the onset of a criminal event. Are thus favorable witnesses, and witnesses a de charge it should be deemed not to exist? If it is considered not to exist, why the rule in article 65 juncto Article 116 of ACT 8/1981 set up its existence?; 16. According to the applicant, save That of witnesses and witness a de charge it is very important for the suspect and/or accused, although they do not see themselves, hear, and experience their own criminal events that occur. But the testimony they have linkages with the alleged criminal events and useful for the interest of a fair investigation and in the framework of the defence of a suspect and/or accused, in accordance with due process of law which became one of the State's law as set forth in its rules


30 article 1 paragraph (3) of the Constitution. Presumably, it is obvious rule that contains a defenisi witness in article 1 26 numbers has obscured the existence of favorable witnesses and witnesses a de charge that his rule is set out in rule 65 juncto Article Article 116 paragraph (3) of LAW 8/1981. The rule of laws that obscure the existence of favorable witnesses and witnesses a de charge this distinctively contrary to the rules of the Constitution, in particular due process of law (the inspection process is right and fair), which became one of the State's law as set forth in article 1 paragraph (3) of the CONSTITUTION of 1945; 17. That the existence of favorable witnesses and witnesses a de charge that his rule is set in the rule in article 65 juncto Article 116 paragraph (3) of LAW 8/1981 had been in line with the rule that contains the guarantees, protection and legal certainty the fair as its Constitution rules provided for in Article 28D paragraph (1) of the Constitution. But rules governing laws about the definition of a witness in article 1 26 numbers associated with Article 65 juncto Article 116 paragraph (3) of LAW 8/1981 has led to conflict with constitutional rules that govern the existence of guarantees, protection and legal certainty that is fair. Warranties and protection become obscure with definitions of the witness does not extend the favorable witnesses and witnesses a de charge like that. Similarly, legal certainty be gone, and justice be overlooked due to the enactment of rules of law that govern the definition of witness in article 1 point 26 of ACT 8/1981. The rules of this Act distinctively contrary to constitutional rule as set forth in section 28D subsection (1) of the CONSTITUTION of 1945; 18. That the rule of law as formulated in article 1 point 27 defines "witnesses" as a description of people who see themselves, hear, and experience the onset of a criminal event and he gave reasons on the description of it, is Ditto Ditto with the definition in article 1 number of witnesses 26, if the rules in this section are linked with article 184 paragraph (1) letter a of LAW 8/1981. The rule of laws that are set in this place the "eyewitness" in the first-order evidence in the trial. Placement in this first sequence indicates that 31 "witnesses" is absolutely the primary as a means of proof, it is much better than with tools that other evidence. But the "witnesses" who rules his rule is set out in Section 184 subsection (1) letter a of this Act, again only in accordance with fact witnesses or witnesses events or mere incriminating witnesses; 19. That the definition of "witness" as above is not always applicable to the favorable witnesses and witnesses a de charge. Thus the rule of laws that regulate the defenisi of witnesses that can result in favorable witnesses and witnesses a de charge in vain to serve as evidence as set forth in section 184 subsection (1) letter a, if they do not see themselves, hear, and experience the occurrence of the alleged criminal acts it. Description of alibi witnesses in a criminal matter is extremely important position. Because with the evidence of alibi, then the investigation against the suspect can be stopped. Similarly in the trial, the evidence of alibi could absolve a defendant of any lawsuits. If the alibi witnesses cannot be allowed as a valid instrument of evidence in the trial, it will be a lot of defendants are punished arbitrarily. Alibi witnesses waiver as a legitimate instrument of evidence is contrary to due process of law that characterize the State of the law. Then it is clear that the rule of law as set forth in article 1 point 27 is linked to article 6 of LAW 8/1981 is contrary to the rules governing the Constitution of the State of law, as set forth in article 1 paragraph (3) of the CONSTITUTION of 1945; 20. That in our legal history, case Sengkon and Karta (1976) which then encourage the inception of the Institute "herzeining" or review (PK) in our criminal procedure law, precisely by the lack of mauan Investigators summon and examine witnesses alibi, so both should be punished, whereas they are actually innocent. Whereas the existence of favorable witnesses (in the case of Sengkon and Karta are witness to the alibi) and witness a de charge recognized by rule laws that regulated in article 65 juncto Article 116 paragraph (3) of this Act, as part of due process of law which became one of the State's law as set forth in article 1 paragraph (3) 32 Constitution. It is clear that the rule of law as set forth in article 1 point 27 is linked with article 184 paragraph (1) a rule conflicting with the Constitution as provided for in article 1 paragraph (3) of the CONSTITUTION of 1945; 21. That defenisi of witnesses that its rules set forth in Article 1 point 27 of which only in accordance with fact witnesses or witnesses incriminating witnesses events or diubungkan with the rules set forth in Section 184 subsection (1) letter a, indeed eliminate the existence of the principle of guarantees, protection and legal certainty the fair as set forth in section 28D subsection (1) of the Constitution. If the definition of witnesses as it resulted in no possible favorable witnesses and witnesses a de charge as evidence, because they do not see themselves, hear, and experience the onset of a criminal event, then rule the legislation contrary to the Constitution rules that govern the existence of guarantees, protection and legal certainty the fair as set forth in section 28D subsection (1) of the Constitution. Legal certainty be missing, if on the one hand the existence of favorable witnesses and witnesses a de charge acknowledged, while on the other hand, their description can not serve as witnesses as a legitimate instrument of evidence as provided for in its rules of article 184 paragraph (1) letter a of LAW 8/1981. Rules of law such as this obviously is contrary to the rule of the Constitution which regulates the legal certainty a requirement as set forth in section 28D subsection (1) of the CONSTITUTION of 1945; 22. That if there is no legal certainty, then it will not by itself is no guarantee and protection of the certainty of the law. If only witnesses witnesses fact or event or incriminating witnesses could serve as evidence, while favorable witnesses and witnesses a de charge would not necessarily be made into evidence, then the principle of guarantees and protection, legal certainty and fair as a constitutional rule that governed by article 28D paragraph (1) clearly has been violated by the rule of law that governed by article 1 point 27 is linked with article 184 paragraph (1) letter a of LAW 8/1981;

33 23. That based on explanation-the explanation above it is clear that norms may act as set forth in article 1 point 27-26 and numbers associated with the provision of article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a of LAW 8/1981 is contrary to the rule of the Constitution states that the Republic of Indonesia is a country of law, as set forth in article 1 paragraph (3) of the Constitution. Norms of that law is also contrary to the rules of the Constitution which regulates about recognition, guarantees, protection and legal certainty of fair and equal treatment before the law, as set forth in section 28D subsection (1) of the CONSTITUTION of 1945; 24. That face the fact above, in accordance with the contents of this application, then should the Court Constitution known as "the guardian and the final interpreter of the constitution" to declare that the norms applicable law set forth in Article 1 point 27-26 and numbers associated with article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a of LAW 8/1981 is contrary to the rule of the Constitution with regard to the principle of State of law and the principle of the recognition of , guarantee, protection and legal certainty the fair as well as the similarities before the law, as set forth in article 1 paragraph (3) and article 28D paragraph (1) of the Constitution. However, according to the applicant, if efficient norms of legislation was canceled, then it will happen in the race laws, particularly in relation to witnesses of fact, witnesses or witnesses incriminating events, which is also very important position in law enforcement; 25. According to the applicant, saving That race rules the law formulates the defenisi that contains the qualifications of witnesses and witness a lucrative de charge has actually been going on since the beginning of the drafting of the LAW 8/1981. As a former Minister of Justice and human rights which in the past were heavily involved in formulating the legal norms, the applicant is aware that no legislation is perfect. Although the CODE of CRIMINAL PROCEDURE was proclaimed "masterpieces of the nation of Indonesia" but as time goes by, there are just cracks the weakness of the formulation of the rule, which was later thus utilized by law enforcement apparatus that is still imbued by the spirit of "crime control model" à la HIR.


34 the tendency of arrogance of power on while our law enforcement apparatus, thus exploiting the formulation of rules of the Act is to treat the suspect and/or accused arbitrarily. What is power, they are weak, poor, ignorant, and so they become the victims of arbitrariness apparatus nota bene is of his own people. Circumstances like this certainly should not be left well enough alone; 26. That the authority to fill in the race that, according to our Constitution, the mechanism is in fact authority lawmakers, in that it is the House of representatives and the President (article 5 juncto article 20 of the CONSTITUTION of 1945). But considering that process will depend largely on or no desire of legislators to fill it, which surely will take a relatively long time, then by referring to the Court ruling Number 49/PUU-VIII/2010 and awards before, then the Court can fill in the race that gave way to interpret a rule for the interpretation of the legislation as a positive law applicable, in kontitusionalitas with the rules of the Constitution. In this case, the Constitutional Court is authorized to interpret the rules of the act as stated in article 1 the numbers 26 and 27 numbers connected with article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a of LAW 8/1981 to become constitutional against article 1 paragraph (3) and article 28D paragraph (1) of the CONSTITUTION of 1945; 27. That the applicant's intended meaning is that, if the definition of witnesses and witnesses as set forth in article 1 point 27-26 and numbers associated with the provision of article 65 and 116 paragraphs (3) and paragraph (4) juncto Article 184 paragraph (1) letter a, were left well enough alone, then the rule of law are regulated in articles it conditionally remain unconstitutional (unconstitutional conditionally), i.e. contrary to the norms of the Constitution as provided for in article 1 paragraph (3) and article 28D paragraph (1) of the Constitution. In a country of law, the organizers of the State, much less have the authority relevant to the process of making laws, 35 should not let the presence of positive law applicable rules, which are conditionally unconstitusional like it; 28. That rule to make a law that contains a definition of the qualifications of the witnesses and the witnesses as referred to in article 1 the numbers 26 and 27 of LAW number 8/1981 be conditionally constitutional rule, then it must be meant that favorable witnesses and witnesses a de charge does not always have to be interpreted as "one who can give a description to the interests of the investigation, prosecution, and trial of a criminal he heard himself He saw himself, he experienced "but the person who can provide information which relates to a criminal even though he did not hear himself, he did not see himself, and he is not experienced, all the information that person according to the assessment of a suspect and/or accused, relating to the alleged criminal act and/or didakwakan to him will be profitable and/or relieve himself. So it is with the definition of witnesses does not always have to be interpreted as "evidence in criminal cases in the form of information from witnesses about a criminal event he heard himself, he sees himself and he experienced by mentioning the reason of his knowledge of it", but the evidence in criminal cases in the form of information from witnesses about an event that is not necessarily a criminal he heard himself He saw himself, and he experienced, by reason of his knowledge of it. Interpretation in a manner such as this, according to the save the applicant will make norms Act as set forth in article 26 1 number it conditionally is constitutional (conditionally constitution) against the constitutional rule as set forth in article 1 paragraph (3) and article 28D paragraph (1) of the CONSTITUTION of 1945; 29. That interpretation as number 28 above, Megawati Sukarnoputri, Jusuf Kalla, Kwik Kian Gie, and Susilo Bambang Yudhoyono, although they do not see themselves, hear, and experience his own criminal act that disangkakan to the applicant, the fourth such person qualifies as a witness which is advantageous for the applicant. The description of them as witnesses the 36 profitable applicant must be interpreted as "witnesses" as a means of evidence as set forth in section 184 subsection (1) letter a of LAW 8/1981; 30. That the applicant is aware, in accordance with the authority given by LAW Number 24 year 2003 on the Constitutional Court, the matter of testing law is something that is abstract and not associate it with an event that is more concrete. While the ruling of the Constitutional Court are also deklaratoir and the instead of imperative nature in the form of a verdict for amar told certain parties to do or not do something mentioned in the dictum of the verdict. According to the applicant, this is the efficient layout of the shortcomings of the ACT on the Constitutional Court, since the abstract nature of the award, while the petition can only be done by the subject of the law which has the position of law (legal standing) with strict terms, as stated in yurispridensi Court in the verdict the number 006/PUU-III/2005 and decision number 11/PUU-V/2007 and subsequent awards. Five conditions losses made as constitutional legal position (legal standing) it is not something abstract, but something really concrete, real, factual and specifically did occur on a Applicant; 31. That plea from something really concrete, will it be reasonable if the rewards are then given purely abstract? The applicant would like to quote a religious rule set forth in the Qur'an Surah Al-Zalzalah v. 7 and 8 which says "famay mitsqalazarratin khairan ya'mal yarah, wa may ya'mal yarah syarran mitsqalalazarratin", meaning "he who doeth the slightest virtue, then virtue that will be rewarded with a worthwhile virtue, and whoever did the slightest malice, then ugliness that will also be enough ugliness". The rules set forth in the Qur'an is trusted by over a billion Muslims in the world as a moral rule is universal. This rule teaches that a deed, good or bad, must get the rewards are worthwhile. While an application originating from the constitutional harm kongrit, 37 real, factual and specific, be not accordingly when given the abstract nature of the reward. The position of moral rules which are universal--as it says Islamic philosopher Imam Al-Ghazali in Ihya Uloom Al-Kitab and the Catholic philosopher St. Thomas Aquinas in his Summa Theologiae--higher position than the rule of law. Aquinas even says, the rule of law that is contrary to the moral rule, does not deserve to be considered a rule of law. 32. According to the applicant, save That the ruling of the Constitutional Court in testing the legislation should not purely abstract which applies to all people and all institutions, but for the applicant who has struggled to apply, can be considered for grant of the petition that is concrete, which originated from losses sustained as constitutional as the position of the law (legal standing) in the petition. Is it not in the Court ruling Number 006/PUU-III/2005 of 31 May 2005 and decision number 11/PUU-V/2007 20 September 2007, the Court has formulated that harm the rights and/or constitutional authority of the applicant as set forth in article 51 paragraph (1) of the ACT the COURT is among other things "of the possibility that by dikabulkannya the petition, then such a constitutional harm will not or are no longer going to happen." How is it possible that the applicant's constitutional harm "would not or no longer will happen" after the petition is granted, if the Court ruling turned out to be prospective in nature and is not retro-active? There is such a contradiction between this formulation with what the applicant obtained after their petition was granted the Court; 33. That the applicant is aware that the nature of the institution of a prospective Court ruling is based on the provisions of article 47 of the ACT the COURT that said "the ruling of the Constitutional Court law still gaining strength since the complete spoken in plenary session open to the public" and the provisions of article 58 which says "the laws that are being examined by the Constitutional Court remains valid, prior to the verdict stating that the Act is contrary to the Constitution of 1945". On the save the applicant, norma which is set in the


This is not article 38 two close chances that verdicts about testing legislation cannot be enacted in a special retrospective effect for the applicant who distinctively suffered losses due to the introduction of a rule of constitutional law. The Bill is being tested are indeed planets could be remain in force prior to the Court ruling which declared the legislation contrary to the Constitution. 34. That in saving the applicant, once the Court decided that the Act was contrary to the Constitution, whether bermaka that the new legislation is contrary to the Constitution at the time of the Court read out the verdict in a plenary session which is open to the public, as provided for in article 47 of the ACT the COURT? The fact of the fact it is not so, because the material in the legislation it did contradict the Constitution since that legislation was passed. Thus, remain open opportunities for the Court to declare in an award that is only available for the applicant, the legislation stated does not apply since the claimant suffered the loss of a constitutional nature is real, factual and concrete and therefore apply the test Act. Court ruling it applies since pronounced according the provisions of article 47 of LAW COURT; 35. The applicant, save that in the nature of a court ruling in the case of testing the law purely abstract, though fair, but could potentially cause legal uncertainty. Logically if the rule of law is tested with the rule of the Constitution, then the award surely must be abstract. But considering the applicant to apply constitutional losses originating from that is concrete, real, factual and specific, then the applicant appealed to the Court to consider, that the Court ruling in the case of testing the law indeed could be abstract in nature, but the constitutional and juridical implications of ruling must contain a legal certainty that is concrete. The applicant is convinced that the Court will give a fair verdict, but the applicant would like to quote what was said Romly Atmasasmita Prof Dr as written in the jargon of BlackBerry Massages his 39 that justice was abstract, but legal certainty is something more concrete. The applicant in the case of testing the laws is not merely the abstract justice expects with the Court ruling, but also the existence of a concrete legal certainty towards a constitutional disadvantage has been sustained; 36. death row inmates – Amrozy That in the case of the Bali bombing for example--already painstakingly apply to test the Perpu No. 2 2002 juncto LAW number 16 of 2003 about the enactment of the Receding Perpu No. 1 2002 juncto ACT No. 15 of 2002 about the eradication of criminal acts of Terrorism for Special Events in Bali Bombings, who rules his rule judged contrary to constitutional rule such as enshrined in article 28I paragraph (1) of the Constitution. The petition was granted by the Court, but did not bring any benefit to themselves Amrozy, because the nature of the verdict which is abstract and is prospective. Amrozy just get a reward as a charity, because their petition which jariah granted that bring benefits to the people, which in Islamic belief based on the Hadith of Prophet s.a. w, whether it will continue to flow through to the afterlife, when that question is dead. Whereas it is possible for the team and its legal advisor is Amrozy, they proposed the test material to the Constitutional Court, is not merely expect charity jariyah to reward in the afterlife, but the verdict was expected to be constitutional and juridical implications for Applicants above the mortal world. The applicant appealed the Court presumably could end hopes of human beings as Amrozy Fiat do the vain expectation during his life in order that the Court ruling brings something concrete on him. But what is the highly anticipated never arrived until finally Amrozy executed before a firing squad. Amrozy's fate as the people awaits the Godot never came, as it was told Samuel Beckett in his novel "Waiting for Godot" famous; 37. That there are other possibilities that would occur, i.e. the ruling of the Constitutional Court of Justice containing the abstract nature of it will be deliberately ditafsir-tafsirkan by various parties of interests, so that finally cut off the legal certainty which is concrete 40 of the verdict was. Whereas, in the case of testing legislation, more specifically in test interpretation of rules of law towards constitutional rule, the applicant thus berharap-harap so that the Court can construe or interpret a rule the law vague and multiple interpretation of, and that is conditionally constitutional or unconstitutional, conditionally be caused amazement and has concrete legal certainty. The applicants have experience in testing Act No. 49/PUU-VIII/2010 which granted in part a petition for the applicant, but it turns out the Court ruling has been ditafsir-tafsirkan at will (saenake jawaby, Javanese language) and expressed "the Government's Attitude towards the Six Constitutional Court Ruling" presented in a press conference by State Secretary Silalahi and Special staff of President Susilo Bambang Yudhoyono, Prof. Dr. Denny Indrayana, who are trying to obscure and even eliminate legal certainty the verdict of the Court; 38. That to confront this possibility as above, the applicant pleaded the verdict over this petition was later declared unconstitutional and the juridical implications, namely the wajibnya Investigators the Attorney General of the Republic of Indonesia to call and check out Megawati Sukarnoputri, HM Jusuf Kalla, Kwik Kian Gie and Susilo Bambang Yudhoyono as witnesses favourable to the appellant as a suspect in the crime of corruption violates the provisions of article 2 , Article 3 and article 12, subparagraph i of the ACT Number 31 of 1999 juncto ACT Number 8 of 2001 about criminal acts of corruption, as the losses of the applicant's Constitution was used as the seat of the law (legal standing) that the applicant is a natural for real, factual and specific, calculated since the onset of the loss of a constitutional, alleged the appellant as a suspect by the Attorney General's Office since 24 June 2010. Statement (deklaratoir) in the Court ruling, about the constitutional and juridical implications of the verdict was, according to the applicant, the saving is not a verdict that is amar (command) to an institution or a country organiser those individuals;

41 39. That to strengthen the propositions that the applicant pointed out above, in this proceeding, the applicant in addition to the evidence filed, it will also bring the experts to strengthen the propositions of the applicant; IV. Petitum That from all the propositions outlined above and the evidence attached, as well as a description of the experts that will be heard in the proceedings, the applicant hereby beg his Majesty the Tribunal Judges the Constitution in order to be pleasing to give the verdict as follows: in the subject matter of case: 1. Accept and accede to the applicant's application to test the provisions of article 26 and numbers figure 1 27 juncto Article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a law number 8 of year 1981 about the CODE of CRIMINAL PROCEDURE (LN 1981 Number 76 and TLN 1981 Number 3209) of the State Constitution of the Republic of Indonesia in 1945; 2. Declare that the Clause 1 figures 26 and 27 is linked with the provision of article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a of ACT No. 8 of 1981 on the book of the law of criminal procedure (LN 1981 Number 76 and TLN 1981 Number 3209) is in accordance with the Constitution of the Republic of Indonesia in 1945 conditional (conditionally constitutional) constitutional, IE all is meant a favorable witnesses and witnesses a de charge is a person who can provide information to the interests of the investigation, prosecution and the judiciary about a criminal who is not always and/or must he heard himself, he sees himself and he experienced. Favorable witnesses and witnesses a de charge is one tool evidence in criminal cases in the form of information from witnesses about an event that is not necessarily criminal and/or must he heard himself, he sees himself and he experienced with the mention of the reason of his knowledge of it. Diperiksanya called and asked for a favorable witnesses and witnesses a de charge is the mandatory suspects called and checked by investigators, without the authority of Investigators to assess and implement that obligation. refuse 3. States that this ruling brings kostitusional and juridical implications to Investigators at the Attorney General's Office of the Republic of Indonesia that checks


42 the applicant, to summon and examine witnesses benefit requested by the applicant, namely Megawati Sukarnoputri, HM Jusuf Kalla, Kwik Kian Gie and Susilo Bambang Yudhoyono uncountable since the applicant designated as suspects on June 24, 2010; 4. Orders the loading of this ruling in the news of the Republic of Indonesia as it should be. Or if the Tribunal Judges the Constitution holds other, please seadil-fair Award (ex aequo et bono). [2.2] considering that to prove the evidence if possible, the claimant has submitted evidence that writing letters/marked evidence of P-1 to P-23 with evidence, as follows: 1. Proof of P-1 Photocopy Card Sign inhabitants (KTP) and the passport of the applicant; 2. Photocopy of proof of P-2 Law No. 8 of 1981 on the law of criminal procedure; 3. Proof of P-3 a photocopy of the Constitution of the Republic of Indonesia in 1945; 4. Proof of P-4 photocopies of the book of the law of criminal law (the CRIMINAL CODE); 5. Proof of P-5 Photocopying Tempo interactive, on Tuesday, June 29, 2010, at 07.37 GMT; 6. Proof of P-6 Photocopying Summons the suspect from the Attorney General's Office of the Republic of Indonesia Number SPT-2914/F 2/Fd. 1/10/2010 dated October 14, 2010; 7. Proof of P-7 photocopy of applicant's Photograph; 8. Proof of P-8 Photocopying newspaper clippings Media Indonesia, on Sunday, October 17, 2010; 9. Proof of P-9 Photocopying Clippings Between News, on Tuesday, 10 August 2010, at 17:59 GMT; 10. Proof of P-10 Photocopying the statement to the Director of Special Crime Investigation, the Attorney General of the Republic of Indonesia to bring expert witnesses and ease in the case of the applicant as a suspect; 11. Proof of P-11 a photocopy of a Letter Of Intent of the Government of the Republic of Indonesia to the IMF 43 date 21 May 2000; 12. Proof of P-12 Photocopying Magazine 51 Years TRUST VIII, 18-24 October 2010; 13. Proof of P-13 Photocopying Data Central Bureau of statistics in 2008; 2. Evidence of the P-14 Photocopying Act No. 40 year 2007 on limited liability company; 15. Evidence of the P-15 Photocopying Act No. 8 of 1997 about the acceptance of the country instead of taxes; 16. Proof of P-16 Photocopying Government Regulation Number 38 in 2009 about the type and price of the above types of Acceptance State Tax is not applicable to the Department of law and human rights; 17. Proof of P-17-Photocopying Detiknews.com, on Wednesday, October 20, 2010, at 17.47 GMT; -Photocopying Tribunnews.com, on Monday, 4 October 2010, at 23 PM EDT; -Photocopying TEMPO interactive, on Wednesday, October 20, 2010, at 5 PM EST; 18. Evidence of the P-18-Photocopying, Seruu.com on Friday, October 15, 2010, at 6 PM EST; -Photocopying, Metrotvnews.com on Friday, October 15, 2010 at 21 PM GMT; -Photocopying Kompas.com, on Friday, 15 October 2010, at 18:22 GMT; 19. Proof of P-19-Photocopying, Seruu.com on Friday, October 15, 2010 at 21 PM GMT; -Photocopying VIVAnews.com, on Friday, 8 October 2010, at 15 PM EST; -Photocopying Republika.co.id, on Wednesday, 6 October 2010, at 20:42 GMT; News-Indonesia, on Friday, 15 October 2010, 19:00 the EDT; -Photocopying detikNews, on Wednesday, October 20, 2010, at 17.47 GMT;

44-Photocopying Tribunnews.com, on Monday, 4 October 2010, at 23 PM EDT; -Photocopying TEMPO interactive, on Wednesday, October 20, 2010, at 5 PM EST; -Photocopying Tribunnews.com, October 4, 2010; 20. Proof of P-20-Photocopying Suaramedia.com, on Friday October 1, 2010, at 14.44 GMT; -Photocopying VIVAnews.com, on Friday, 1 October 2010, at 15 PM EST; Photocopy Description h. m. Jusuf Kalla about Sisminbakum; 21. Evidence of the P-9 Kwik Kian Gie Photocopy Description about Project Sisminbakum; 22. Evidence of the P-22 Photocopying news clippings Indonesia Raya, on October 1, 2010; 23. Proof of P-23 Photocopying Clipping Sound renewal, on November 1, 2010, at 13:23. In addition, the claimant submitted four (4) people who have heard his statement under oath in the trial on 18 January 2011, substantially as follows: 1. Prof. Dr. Edy O.S. Hiariej a. based on historical interpretation, the CODE of CRIMINAL PROCEDURE was established to replace the Indische Herzine Reglement Prince colonial and tend to apply the principles of crime control model, i.e. the existence of giving priority to efficiency, quantity and use the principle of presumption of innocence. Therefore, CODE of CRIMINAL PROCEDURE formed in nature kendatipun not leave independence fully the principles in the crime control model but it has lead to the due process of law as the model beracara in the criminal justice system that applies universally. b. based on doctrinal interpretation, the word "evidence" or "evidence" or "bewijs" is information that provides the basics that support a belief that some parts or all of the facts were true. There are four fundamental matters related the concept of proof itself: 45 1) evidence must be relevant to the dispute or matter which is being processed. This means that the evidence relating to facts that point to a truth of an event. 2) evidence shall be acceptable or admissible. On the contrary, the evidence is not relevant, it will not be accepted. Kendatipun so, can only one relevant evidence but it is not acceptable. 3) the existence of the exclusionary discretion or exclusionary rules, namely Regulation requires that evidence obtained illegally cannot be accepted in court. Especially in the context of criminal law, kendatipun a proof of relevant and acceptable from the standpoint of the public prosecutor, however, may be excluded by the judge when obtaining the evidence do not comply with the rules. 4) in the context of the Court, any evidence which is relevant and acceptable must be evaluated by the judges. It is thus included in the context of the power of proof or bewijskracht. The judges will assess any evidence submitted to the Court, the alignment between the evidence that one with the other evidence, will then make such evidence as the basis for consideration in taking the award. Evidence that apply universally in the criminal justice system was a witness (the witness), expert (expert), documents, and evidence of real or physical evidence that in the context of the law of criminal procedure in Indonesia known as the evidence. The witness in question is a damning witness (de charge) as well as witness the ease (a de charge), that are relevant to the matter that is being processed. Of proof in criminal law from the stage of the inquiry and/or investigation until the stage of the examination in the Court of session. Therefore the investigator or Prosecutor may request a description of the incriminating witness starting from the stage of the investigation and trial stages of investigation or until. And vice versa, as a counterbalance, suspects can ask of witnesses that relieves starting from the stage of the investigation and trial stages of investigation or until. The submission of evidence by the suspect or the accused in accordance with the principle of exculpatory evidence which means the suspect or the accused has the right to include any evidence showed 46 witnesses who relieve to indicate that he is not guilty. This is to prevent the occurrence of unfair prejudice or persangkaan unnatural against suspects. c. grammatical interpretation, based on the provisions of article 26 juncto Article 1 point 1 point 27 juncto Article 84 paragraph (1) letter a CRIMINAL PROCEDURE CODE essentially defines a witness as the person who can provide information to the interests of the investigation, prosecution, and trial of a criminal he heard himself, he sees himself and he experienced. If translated a contrario description of an event that is not seen, heard or experienced himself is not of witnesses. Whereas, the needed alibi witnesses as a description of the suspect or accused for ease of course she's not seen, heard, or experienced yourself about criminal cases that are disangkakan or didakwakan. It can be said that the definition of a witness which is contained in Article 26 juncto Article 1 point 1 point 27 juncto Article 84 paragraph (1) of the CRIMINAL PROCEDURE CODE the letters a more incriminating witnesses (de charge). Grammatical interpretation are against Article 116, article 65 paragraph (3), and article 116 paragraph (4) of the CRIMINAL PROCEDURE CODE indicates that these provisions are clearly intended to witness the ease (a de charge). Thus Article 26 juncto Article 1 point 1 point 27 juncto Article 84 paragraph (1) letter a CODE of CRIMINAL PROCEDURE is contrary to Article 65 juncto Article 116 paragraph (3) and paragraph (4) of the CODE of CRIMINAL PROCEDURE so as to give rise to legal uncertainty and the absence of a guarantee of equal treatment as well as against any person when faced with lawsuits. When linked with the four fundamental laws of proof, the relevance of the witness is not on whether he saw, heard or experienced an incident of criminal, but rather whether or not it's relevant testimony with criminal cases which are being processed. Whether a witnesses the admissible or not admissible is the authority of the judge to determine in the framework of the assessment of the strength of proof of evidence presented by the Prosecutor or the defendant.


47 d. based on comparative interpretation against Article 342 paragraph (1) the Wetboek van Strafvordering in the country the Netherlands defines a witness: "Onder een getuige van verklaring wordt verstaan bij het onderzoek zijne op de terechtzitting van gedane mededeeling omstandigheden, welke of feiten hij zelf heeft ondervonden of waargenomen" (description of the witness is what is revealed in the investigation and in front of a court hearing regarding an event or situation that is experienced or knowledgeable). Such a definition is universal and can be interpreted both lighten the witnesses or witnesses incriminating. e. related to interpretation of the futuristic, Indonesia has ratified the United Nations Convention Against Corruption (UNCAC) and Act No. 7 of 2006 which upholds the principles of due process of law. The provisions of article 26 and numbers figure 1 27 juncto Article 84 paragraph (1) letter a CRIMINAL PROCEDURE CODE when interpreted in grammatically and systematically eliminating the rights of suspects/defendants to ask witnesses who relieve because investigators and or public prosecutor will still insist on the definition of a witness which is contained in the articles of a quo kendatipun the provisions of article 65 juncto Article 116 paragraph (3) and paragraph (4) provided the opportunity for it. Thus the definition of witness in article 1 figure 27 and Figure 26 juncto Article 84 paragraph (1) letter a CRIMINAL PROCEDURE CODE should be interpreted as people who can provide information to the interests of the investigation, prosecution and the judiciary about a criminal cases he heard himself, he sees himself, he experienced "but the person who can provide information which relates to a criminal even though he did not hear myself He does not see himself, and he is not experienced, all the information that person according to the assessment of a suspect and/or accused, relating to the alleged criminal act and/or didakwakan to him will be profitable and/or relieve himself. In conclusion, article 26, article 1 point 1 point 27, article 65, article 116 paragraph (3), article 116 paragraph (4) and section 184 subsection (1) letter a, a contradiction between each other and violating the principle of State of law and the principle of recognition, guarantees, protection and legal certainty the fair as well as the similarities in 48 before the law as intended by article 1 paragraph (3) and article 28D paragraph (1) of the Constitution. 2. Dr. Mudzakkir, S.H., M.H. Criminal proceedings are conducted through the stages of the investigation, investigation, prosecution, examination in the Court of session, and the implementation of the verdict. To prove a criminal act that occurred and found the evidence required should suspect a legitimate and recognized by article 184 paragraph (1) of the CODE of CRIMINAL PROCEDURE, namely: a) of witnesses; b) description of the expert; c) Letter; d) instructions; e) description of the defendant. Examination of criminal cases seeking the truth of material, then the examination at this stage of the investigation needs to be done carefully, carefully and objectively in order to find the truth of the material and therefore judges in criminal cases are active. According to the doctrine of criminal law, the criminal justice process stages are distinguished into the stage of pre-ajudikasi, ajudikasi, phase and phase post-ajudikasi. On the stage of pre-ajudikasi there are two legal actions, namely investigation and investigation. Pre-ajudikasi stage is the stage of gathering all the evidence and a false assertion as to whether a matter is being examined as an Criminal deeds or not criminal deeds. At this stage all evidence collected to be bright and clear the existence of alleged violations of criminal law. The evidence collected on the initiative of either the investigator or Rapporteur on the initiative and reported or suspected. This is important because investigators in using his authority rather than for the purpose of asking a person to be tried in a criminal court sentenced (in the form of criminal fines, imprisonment, or are convicted to death), but rather to uphold law and justice [article 24 paragraph (1) of the Constitution].

49 the stage of pre-ajudikasi decide the fate of a person allegedly committing criminal acts in several ways, namely: a) to determine whether a particular deed is being examined as an Criminal deeds or not; b) if based on evidence of the beginning of a pretty then summed up as criminal deeds, determine who the perpetrators of such criminal acts, which the suspect? c) to determine whether a series of deeds suspects have met the elements of a criminal offence which is disangkakan or not? d) If based on the existing evidence (the results of the investigation) is declared to have met the elements of a criminal offence who disangkakan to him, determines the Act suspects can continue to be examined in court and the public prosecutor made the indictment. e) Furthermore, all materials are prepared on the stage of pre-ajudikasi, determines the quality of the judge's verdict, because in the judgment (check and disconnected) criminal cases in the courts, judges base their told the indictment submitted by the Prosecutor. At the stage of pre-ajudikasi, the process of collecting evidence needs to be done as accurately as possible, whether that comes from the rapporteur's initiative and investigators as well as on the initiative of the suspect. Evidence in question is all evidence which could describe the actual State concerning a person's deeds and other accompanying deeds (of the alleged criminal deeds). According to experts, the assessment of evidence are not categorized by the evidence incriminating the suspects/defendants (evidence presented investigators) or relieve (evidence presented the suspect/defendant), but rather judged from the angle of objective, namely the value of the power of proof against a lawsuit that is being checked. The value of the power of proof of evidence is determined based on a case by case assessment of the common tools and standards of evidence dikualifikasikan as follows: a) the value of the power of proof of witnesses in criminal cases: 1) the eyewitness sources of what witnesses, see, and hear for yourself.

50 2) witnesses are sourced from what witnesses see and hear for yourself. 3) witnesses are sourced from what witnesses saw or heard themselves. 4) witnesses another sourced from what the witnesses heard from other witnesses that experienced, seen, or heard of his own. b) value the power of proof from experts: 1) description Description about the quality experts on the power of proof of evidence; 2) description the expert information material not directly related to the quality of the power of proof of evidence. c proof of strength) value: 1) Letter Mail related directly or used to commit an act of criminal. 2) which is not directly related to an act of criminal. d) evidentiary power Value of the defendant's description: 1) description of the defendant which is directly related to the elements of a criminal offence which is didakwakan. 2 the defendant) description is not directly related to the elements of a criminal offence which is didakwakan. The collection of evidence is assessed objectively have two functions, namely, first, positive function against alleged criminal doings; and second, the function is negative against alleged criminal deeds. Using modeling criminal justice system proposed by Herbert l. Packer, i.e. the Crime Control Model (CCM) and the Due Process Model (DPM), in a criminal justice system based upon Crime Control Model (CCM) more emphasis to the positive proof model, being in a judicial system based upon Due Process Model (DPM) more emphasis to the process of proof are balanced, i.e., using a positive model (proposed by the public prosecutor) , and the negative model (filed by the defendant/Advisor of the ruling). CODE of CRIMINAL PROCEDURE of designing the Organization of different criminal justice with both, all law enforcement officers at the stage of investigation has


51 the obligation to gather evidence which is either positive or negative towards the alleged criminal acts which are disangkakan to the suspect, and if it fails to prove it, then the matter is stopped through the issuance of a letter of Termination of investigation (SP3) as stipulated in article 109 CODE of CRIMINAL PROCEDURE. If legal norms in Chapter 1 the 26th and the 27th, article 65 and article 116, the CRIMINAL PROCEDURE CODE connected with the provision of article 184 is a form of CODE of CRIMINAL PROCEDURE regarding setting limitation on the freedom of a person through the law, then the legal norms should be qualified, that is solely for the purpose of: a) to ensure recognition and respect upon the rights and freedoms of others, and b) to meet the demands of a just and moral considerations in accordance with the , religious values, security and public order in a democratic society; The fulfillment of the rights of the suspect, including the right for to dress yourself asking witnesses and or someone who has special skills in order to provide information that is auspicious for him (article 65 CODE of CRIMINAL PROCEDURE), which became an obligation to pay for investigators [article 116 paragraph (3) and paragraph (4) of the CODE of CRIMINAL PROCEDURE] is part of the practice of the State law of Indonesia referred to article 2 paragraph (3) of the Constitution. Therefore, evidence or witnesses may be brought by the complainant, investigator, or the suspect/accused/reported and his legal adviser. Principle, witnesses are neutral and objective. Objectivity of witnesses is measured from the description the testimony just based on what he and/or she and/or he heard himself being given under or on top of the oath. This is such a witness witness description of his testimony has a strong evidentiary power in criminal cases, because it is directly related to the elements of a criminal offence which is disangkakan. A witness or other evidence submitted by the suspect/Advisor to the ruling has a strong evidentiary power rating and the same with the other witnesses provided that meet the quality of witnesses that is neutral and objective, description given based on what he's naturally 52 and/or he saw and/or he heard himself being given below/above the oath. The difference is to pembuktiannya properties, that proof is negative. That is, a description of the testimony or evidence presented that prove otherwise, i.e. prove that is not the fulfillment of the elements of a criminal offence who disangkakan him. Description of testimony that has quality as outlined also depends on the nature of the crime, i.e. an act a criminal who happens to do enough with one-time acts committed by one person or more than one person (include/pembantuan); and there are times when the deed is done through a long process, a relatively long time, and it involves a lot of people. This last case can be found in a criminal act related to the use of the authority of public officials were sourced from within the decision-making process or policy (such as the alleged criminal acts which aspects influenced this material/test application Sisminbakum). In conclusion, the legal norms of criminal procedure contained in article 1 to article 1-26, 27 is linked with the CODE of CRIMINAL PROCEDURE Article 65 juncto Article 113 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a CODE of CRIMINAL PROCEDURE (law 8/1981) as legal norms which resulted terampasnya exceptions of rights and freedoms or freedom of a person who was made a suspect declared contrary to the Constitution when interpreted to be inappropriate or contrary to the intent and purpose of article 28J UUD 1945 he broke which resulted in suspects that is guaranteed by the Article 28D paragraph (1) of the Constitution in order to State the law of organization of Indonesia [article 1 paragraph (3) of the Constitution]. 3. Dr. Chairul Huda criminal justice system organized by the principle of presumption of innocence (the presumption of innocence principle). Before the court stating someone is guilty of a criminal offence which he did, then this whole "process" (reduction and restriction of fundamental freedoms) and the "procedure" (the protection of fundamental freedoms) in the law of criminal procedure dedicated to "taking a distance as far as possible with the presumption that a person is not guilty (guilty of presumption), unless it can be proven otherwise".

53 implementation of the criminal procedure, such as investigation, prosecution, and examination in advance of the court session, departing from the effort to guarantee that legal proceedings can take place in a reasonable (due process of law), by the existence of a possibility for someone to escape from social degradation as the perpetrator of the crime, unless the Court stated so. As the implementation of criminal process, marked by a number of instruments to ensure the subject examination can "use a specific legal rights", so keeping is concerned remain as "innocent people", until the courts prove otherwise. One of the important ones are right to ask the witness (or expert) that benefit the suspect/defendant (CODE of CRIMINAL PROCEDURE Article 65). The implementation of the principle of presumption of innocence requires substantiation has occurred and a criminal offence have been guilty of committing the criminal offence, based on evidence that does not cause any doubts whatsoever (beyond the reasonable doubt), obtained lawfully. This principle was started since the stage of investigation. For that "the law requires that" the judicial apparatus (Investigator, Prosecutor, and judge) pursuit of truth anti-materiel, which not only is obtained from witnesses (a charge) but also "calling", "checked", and "hear" the witness or a person who has special skills in order to provide information that is auspicious for the suspect/defendant [article 116 paragraph (4) and section 160 subsection (1) the letter c CODE of CRIMINAL PROCEDURE]. -Performance of a legal obligation not to "call", "checked", and "hear" the witness or a person who has special skills in order to provide information that is auspicious for the suspect/Defendant referred to, can be seen as a challenge against the principle of presumption of innocence. The provisions of article 65 is the CODE of CRIMINAL PROCEDURE provisions about "rights", in this case of "legal rights" of a suspect or defendant, to sustain themselves over the supposition or indictment for allegedly had committed a criminal offence. The implementation of these rights can be distinguished when the question becomes a suspect, and at the time in question has become the defendant.

54 at this stage of the investigation, the implementation of these rights is linked with the provision of article 116 paragraph (3) and paragraph (4) of the CODE of CRIMINAL PROCEDURE, which specifies that in the event the suspect wants didengamya the witness (or expert) that could benefit him, investigator is obligated to call and examine witnesses (or expert). The suspect's rights as stipulated in article 65 CRIMINAL PROCEDURE CODE has been transformed into "obligations of investigators." In other words, the witness (or expert) that benefit there is "legal rights" of the suspect and a "legal obligation" of investigators. Suspects "to dress it and to ask a witness and or someone who has special skills in order to provide information that is auspicious for him", became obligations of investigators, namely: a. ask the suspect wishes about didengamya a favorable witness for him; b. enter in News Events about the desire of the suspect Pemeriksaaan suspect berkenaaan with didengamya a favorable witness for him; c. calling with worthy witnesses favourable to the suspect; d. examine the witness that is favorable to the suspect; e. poured in the news of the proceedings the witnesses witness inspection results are favourable for the suspect. The provisions of article 224 of the CRIMINAL CODE complements the obligations of Investigators with "overbearing", so that a witness who is favorable to defendants meet the call and provide the necessary information in a criminal matter. At the stage of examination in advance of the hearing, connected with article 160 subsection (1) the letter c CODE of CRIMINAL PROCEDURE, the legal rights that transformed into a legal obligation for a judge to listen to a witness that is favorable to the defendant. If in the course of investigation the investigator is obligated to "call" and "check out", but judge "only" obliged "to hear", but there is no single apparatus that the obligatory "calling diabaikannya", so that it may be subject to criminal sanctions under article 224 of the CRIMINAL CODE. Thus, the exercise of the legal rights of the defendant to dress and ask witnesses and or someone


55 who have special expertise, rely heavily of "good faith" the public prosecutor and the judge. Based on the description above, the liability of the investigator to call and examine witnesses (or expert) that benefit the suspect, had a very strategic position, because if her suspects cannot be dikualifikasi meet the elements of a criminal offence and therefore guilty, then the legal process against those concerned will not continue to court. "Witnesses are advantageous for themselves the suspect/defendant" as referred to in article 65 is the CODE of CRIMINAL PROCEDURE "other uses" of the witness or witnesses, as referred to article 1 the numbers 26 and 27 digits CODE of CRIMINAL PROCEDURE. A favorable witness is a witness outside of understanding the sense of a witness incriminating. Similarly expert in the sense of Article 65 CODE of CRIMINAL PROCEDURE does not equal understanding of experts referred to in article 7 paragraph (1) of the CRIMINAL PROCEDURE CODE h juncto Article 120 paragraph (1) of the CODE of CRIMINAL PROCEDURE. Based on this, not in place if the investigator refused to summon and examine witnesses who desired by the suspect, citing argues "there is no relationship" with the caption the crime disidiknya, assuming because "don't see, hear and experience a criminal event". Similarly with the experts, "which is required in connection with the proceeding" or "the opinion of experts or people who have special skills" in the investigation of criminal acts, has nothing to do with "someone who has special skills that benefit" for the suspect. Examination of witnesses (or expert) who benefit in this stage of the investigation solely done to run the legal rights of suspects. Certainly be illogical if the suspect asking witnesses (witnesses), as referred to in article 1 point (and 27) and the CODE of CRIMINAL PROCEDURE expert, as stipulated in article 7 paragraph (1) of the CRIMINAL PROCEDURE CODE h juncto Article 120 paragraph (1) of the CODE of CRIMINAL PROCEDURE. A favorable witness here are witnesses that see, hear and experience the events that had to do with a suspect, so much so that the disangkakan event is visible from the other side. Included in this sense is a witness 56 relieve, witnesses who gave an alibi, other witnesses on the point can make a suspect cannot be expected (a de charge) has been doing the criminal events. Congruent with this, with regard to the experts referred to in Article 65 CODE of CRIMINAL PROCEDURE is a person who because of his disangkakan against a suspect event into another, it becomes not a criminal event, but rather for example is a civil official of the deeds or events of the country. Another goal is not, making the position of suspects to be "benefited" in the eyes of the law. Investigators are in no way justifiable "rate" of witnesses (or expert) that profitable "before" calling and checking is concerned. Prejudice that makes Investigators playing judgement are premature. The assessment can only be made "after" calling and checking is concerned, in accordance with the will of the suspect. 4. Dr. Gift Toha article 1 paragraph (3) of the Constitution states that the State of Indonesia is a country of law. Then the law who holds supreme power. Thus not only the people who have to comply with the law, but the State must also be subject to the applicable law (rechtssouvereiniteit). As a State law, it is imperative to respect and uphold the principles of human rights (human rights), i.e. the rights owned by the man solely because he was a human being, not because it was given to him by the community or by positive law but solely on the basis of his dignity as a human being. There are a number of HUMAN RIGHTS principles that apply universally, such as the principle of equality laid everyone born free and have equality; the principle of non-discrimination, namely in the form of banning the existence of difference in treatment of those who should be treated the same; and the principle of the obligation of the State to protect the HUMAN RIGHTS, namely that a State should not be deliberately disregarding the rights and freedoms, in contrast to the active obligation to protect the country and ensuring the correct fulfillment of HUMAN RIGHTS. In the criminal justice system, respect for HUMAN RIGHTS including the rights of suspects, accused persons, even the convicted person, reflected in the respect of the principle of due process against 57 of law. Must respect the due process of law to depart from the nature of the criminal law which has heavy sanctions not only to the perpetrator, but also for its family relatives. Someone thought to do a criminal act, essentially have punished even before was found guilty by the courts which have the force of law. Therefore, the suspect or the defendant shall then protected his rights to perform advocacy and collect evidence, meringankannya. The principles of due process of law by itself is inherent in every human being, which protects him from the arbitrary actions of the (arbitrary), suppress (oppresive) and unfair government action (unjust government actions). If the process of law enforcement resulted in mengingkaran against the principle of fairness has occurred then a violation of due process of law, which may lead to dihukumnya innocent people. In the criminal justice system, Justice will be better achieved if the procedures are properly implemented or followed. The procedure of due process of law play an important role because he limited the techniques of investigation and investigation by police, limiting the actions of the public prosecutor, and directs how criminal justice is carried out. The procedure of due process of law entitles the suspect/defendant to be treated fairly. A fair legal process including the right to be heard, doing self-defense, recognition of the commonality of the position in law, and respect for the principle of presumption of innocence. A fair legal process would ensure the two parties in the system of criminal law, i.e. law enforcement authorities and the suspect/accused persons, have equal opportunity to present evidence and the reasons so that the judicial process will be run in situations that are fair, accurate, and in ways that make sense. The principles of respect for the due process of law other than contained in article 1 paragraph (3) is also contained in article 28D paragraph (1) of the Constitution. Based on the provisions of article 26 and numbers figure 1 27 CODE of CRIMINAL PROCEDURE, it can be concluded that the evidence of witnesses is an important tool in the process of enforcement of criminal law, both for law enforcement to 58 suspects/defendants errors proves nor attempts for the suspect/defendant in doing self-defense. The investigating authority or the prosecution is to present witnesses who gave damning description for a suspect or accused or who will support the authentication process performed by the investigator or public prosecutor. But, based on the principle of due process of law, is a fundamental right for suspects or accused to conduct self-defense by asking the witnesses be heard is favorable to him. It is this fundamental rights regulated in the CODE of CRIMINAL PROCEDURE Article 65. Next Article 116 paragraph (3) of the CODE of CRIMINAL PROCEDURE laid down the obligation to the law enforcement authorities (investigators) to ask the suspect in the inspection if the suspect wishes to tell the witness that could benefit him, and if there is then it is noted in the news event. Article 116 paragraph (4) of the CODE of CRIMINAL PROCEDURE States that in the case referred to in Article 116 paragraph (3), the investigator is obligated to call and examine witnesses. The investigators have appropriate duty and part homage to the principles of due process of law. Sejauhmana investigators regarding the obligation to summon and examine witnesses presented by the suspect or the accused, apart from favorable witnesses quantity, then more importantly stressed the interconnectedness of witnesses who presented with a criminal offence who disangkakan or didakwakan; and it is reasonable to suspect/defendant said is profitable; and can relieve or absolve the suspect or accused of a criminal offence are disangkakan or didakwakan. Even if the witness is not a witness to the fact (which is seen, heard and experienced it myself) a criminal act, but when the description given it can cause what dipersangkakan against the suspect or defendant into is not a criminal act or at least lighten or his favor, then the witnesses should be summoned and heard. Should the same term on one of the same regulations have the same meaning, but the meaning of witnesses as formulated in article 26 juncto Article 1 point 1 point 27 CODE of CRIMINAL PROCEDURE are the ones that can


59 provides information to the interests of the investigation, prosecution and the judiciary about a criminal who he sees himself, he heard himself, and he experienced, was not in accordance with the provisions of article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a CODE of CRIMINAL PROCEDURE, due to favorable witnesses are not always people who see, hear, and experience itself a criminal offence. Thus, the provisions contained in article 26 juncto Article 1 point 1 point 27 CODE of CRIMINAL PROCEDURE has led to multitafsir and abolish or at least can give rise to discrimination, the implementation of Article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a CODE of CRIMINAL PROCEDURE. Obscurity and arbitrary interpretation by investigators against the resulting articles is not allowed the constitutional rights of the suspect or the accused protected by article 1 paragraph (3) and article 28D paragraph (1) of the Constitution. In the context of an official exercising a policy where the policy taken in a leadership meeting that was attended by other officials at the Environment Agency, in carrying out the policy of the other leaders attending the meeting did not see, hear and experience of implementing the policy. When later the officials who implement policies decided in the meeting that the leadership review by investigators because disangkakan is a criminal offence, although the officials who decide the policy not to see, hear, and experience themselves, but the officials information indispensable for implementing the policy of exempting officials sangkaaan do a criminal act, because these officials know what the content is and how the process of retrieval of the policy. Then, the officials are the witnesses that benefit as referred to in Article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a CODE of CRIMINAL PROCEDURE. Therefore the investigator is obligated to call and check the officials as witnesses favourable, when requested by tersagka. the principles of HUMAN RIGHTS and due process of law has been getting protection in article 1 paragraph (3) and article 28D paragraph (1) of the Constitution.

60 suspects to be heard witnesses favourable to him and the duty of investigators to call and examine witnesses, as provided for in article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a CODE of CRIMINAL PROCEDURE has in accordance with article 1 paragraph (3) and article 28D paragraph (1) of the Constitution. formulation of a witness as provided for in article 26 and numbers figure 1 27 CODE of CRIMINAL PROCEDURE had led to the arbitrary interpretation by the investigators (arbitrary), thus violating the principles of due process of law and cause he broke the rights of suspects, as formulated in article 1 paragraph (3) and article 28D paragraph (1) of the Constitution, and article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a CODE of CRIMINAL PROCEDURE. [2.3] considering that the petition against the applicant, the Government provides information in writing in the trial on 18 January 2011, outlining the following: i. a. Application That Staple staple case shall register the applicant with the application Number 11/PUU-VIII/2010, in essence stating that the provisions of article 65 of LAW 8/1981, is considered potentially detrimental to the rights of the applicant, due to an unconstitutional interpretation conducted by law enforcement officers , especially for the suspect or the accused to ask the witnesses and/or experts who are profitable, which could have rejected by law enforcement officers on the grounds there is no obligation for law enforcement officers to receive and examine witnesses and/or expert. 1. That in handling the matter on behalf of Syaukani Hassan Rais, Marthias Aulia Pohan, and Investigating the corruption eradication Commission (KPK) rejected the proposed experts examine the suspect by reason of no necessity investigators to examine the expert presented by the defendants, it is proved by the letter B-Number 48/d. Dak2/MARCHESA/III/2007 dated March 28, 2007 to Dr. Otto Cornelis Kaligis which reads : "thus the investigators did not have an obligation to call and check the expert which is advantageous for the suspect in the inspection at the level of investigation. To that end, it is suggested to brother to 61 presents expert who is favorable to the defendant in the proceedings in the courts ". 2. According to the applicant, that the Investigators had misinterpreted article KPK a quo so that in the future will open the possibility of violations of constitutional rights as a citizen of Indonesia which is also potentially detrimental to the applicant's constitutional rights. 3. That the norms contained in the law a quo, deemed to have violated the constitutional rights of the applicant as the advocate that when practiced and was appointed legal advisor of the suspect or the accused has suffered a violation of constitutional rights, therefore according to the applicant then provisions a quo was deemed contrary to Article 28D paragraph (1) of the Constitution of 1945. 4. The Government argues that the Constitutional Court is not authorized to investigate and prosecute the application for the applicant, since the application for a quo is related to the application of the norms (the implementation of) a mandate corresponding Statute of article 65 of LAW 8/1981, especially as concerns the order of practice by the corruption eradication Commission in conducting the investigation in accordance with the authority granted by the legislation, in particular in conducting expert examination top considerations put forward a suspect in the investigation. b. that the principal applicant's application with the register matter Number 65/PUU-VIII/2010, essentially declaring the provisions of article 26 and numbers figure 1 27, article 65, article 116 paragraph (3) and subsection (4) and Section 184 subsection (1) letter a of LAW 8/1981 are assumed to negated the recognition, guarantees, protection and legal certainty, and to be considered contrary to the principles of the legal State, therefore according to the applicant the provisions considered contrary to the provisions of article 1 paragraph (3) and article 28D paragraph (1) of the Constitution of 1945 , as the following: 1. That a suspect as specified by the CODE of CRIMINAL PROCEDURE is given the right to prove his innocence, since the provisions of the above must be meant as a suspect attempts to prove his innocence as a form of respect towards human rights, and the fulfilment of such protected and guaranteed by the Constitution;

62 2. That is the right of a suspect to pose as the abundance of evidence favorable to him and prove his innocence, because it gives an interpretation of the Iayak or inappropriate or not witness which is advantageous for him is not a diskresi or "freis ermessen" from investigators more than Jampidsus and Attorney General but the authority of the judge. 3. That the accused or suspect phrases, shall have the right to dress or ask a witness and or one who has special skills in order to provide information that is favorable to her, must be interpreted and meant as a right which cannot be denied for any reason for a suspect to provide witnesses or experts are advantageous for himself in a criminal matter. 4. More brevity Applicants apply in order for the provisions of a quo must be meant (conditionally unconstitutional) "the suspect or the accused has the right to dress and ask witnesses and or someone who has special skills in order to give a favorable description of himself, and the investigator, the public prosecutor and the judge has a duty to receive and examine witnesses and experts or laboured and submitted by the suspect/defendant". 5. The Government argues that the Constitutional Court is not authorized to examine the applicant's petition and rnengadili, because the application for a quo is related to the application of the norms (the implementation of) a mandate corresponding statute article 1 numbers 26 and 27 of LAW number 8/1981, especially as concerns the order of practice by the institution of the Prosecutor's Office as an Investigator, to do the investigation and/or prosecution in accordance with the authority given by law , especially in the conduct of the examination of the witness upon consideration that benefit/witness a de charge for suspects for the interests of the investigation, even against the wishes of the applicant have been met (among other things presents the former Vice President RI h. Joseph Kalla and former Coordinating Minister for the economy of Kwik Kian Gie). II. About the position of the law (Legal Standing) of the applicant in accordance with the provisions of article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court, stating that the applicant is a party


63 that considers the rights and/or authority konstitusionalnya harmed by the enactment of the Act, namely: a. the individual citizen of Indonesia; b. the unity of Community law all still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation; c. a public or private legal entities; or d. the State institutions. The above provision is emphasized in the explanation, that the definition of "constitutional rights" are the rights set forth in the Constitution of the Republic of Indonesia in 1945. Thus, in order for a person or a party may be accepted as an applicant who has the position of law (legal standing) in the application for testing legislation against the Constitution of the Republic of Indonesia in 1945, then the first must explain and prove: a. credentials in the petition for a quo as referred to in article 51 paragraph (1) of Act No. 24 of 2003 on the Constitutional Court; b. rights and/or authority konstitusionalnya in the qualification which is considered to have been harmed by the enactment of the legislation being tested; c. loss of rights and/or constitutional authority the applicant as a result of the enactment of laws that petitioned testing. Further the constitutional court verdict since the number 006/PUU-III/2005 and decision number 11/PUU-V/2007, as well as subsequent rulings, have given the notion and restrictions cumulatively about loss of rights and/or constitutional authority that arise due to the enactment of legislation under article 51 paragraph (1) of Act No. 24 of 2003 about the Constitutional Court must meet five terms, namely: a. the existence of the applicant's constitutional rights provided by the State Constitution 1945; b. the applicant's constitutional rights that are considered by the applicant have been wronged by an act that was tested;

64. The applicant's constitutional that the loss in question are specific (Special) and actual or potential nature at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship (causal verband) between the losses and the enactment of legislation that petitioned to be tested; e. of the possibility that by dikabulkannya the petition then postulated that a constitutional disadvantage will not or no longer occur. Over things, then according to Government of unquestionable interest of the applicant is already right as the party considers the rights and/or authority konstitusionalnya harmed by the enactment of the provisions of article 26 and numbers figure 1 27, article 65, article 116 paragraph (3) and subsection (4) and Section 184 subsection (1) letter a Act No. 8 of 1981 on the law of criminal procedure. Also is there a constitutional disadvantage Applicants in question are specific (Special) and actual or potential nature at least according to the reasoning reasonably certain will happen, and whether there is a causal relationship (causal verband) between the losses and the enactment of legislation that petitioned to be tested. In this case, the Government argues that: a. the applicant in the register Number 28/PUU-VIII/2010 dated 28 April 2010 did not have legal standing to file the petition because it did not meet the provisions of article 51 paragraph (1) of Act No. 24 of 2003 juncto rulings of the Constitutional Court, among others, the verdict the number 006/PUU-III/2005 of 31 May 2005 because there is no loss of constitutional rights of the applicant who is the advocate that when practiced and was appointed legal advisor of the suspect or accused with the introduction of Article that is to be tested. Based on the jurisprudence of the Constitutional Court Ruling No. 10/PUU-VIII/2010 page 57, 58, and 59 points 3.11 up to 3.15 points at anyway stated that the petition of the Applicant's profession as an advocate has no legal standing to apply for a Test materially. b. the applicant's Application with the register matter Number 65/PUU-VIII/2010 not solely addressed to the applicant (as a suspect in the case of a criminal offence of corruption only) and at the stage of investigation, but intended or applicable at any proceeding against any person and 65 or favorable witnesses and witnesses a de charge in accordance with clause 1 figures 26 and 27 numbers Act No. 8 of 1981 on CRIMINAL PROCEDURE CODE. 1. According to the Government, the Applicant stated that the presumption provisions considered contrary to the Constitution of 1945, and therefore also considered detrimental and/or authority konstitusionalnya, is premature and unfounded, because according to the Government's provision of a quo is not solely devoted to the applicant (as a suspect in the case of a criminal offence of corruption only) and at the stage of investigation, but intended or applicable at any proceeding against any person and or favorable witnesses and witnesses a de charge in accordance with clause 1 figures figures 26 and 27 Act No. 8 of 1981 on CRIMINAL PROCEDURE CODE. 2. Thus, although Investigators did not grant the examination of a witness or witnesses favourable à de charge filed by the Applicant at the level of investigation, but laws regulating that at the level of the examination at trial (at the stage of prosecution) Applicants can still apply favorable witnesses and witnesses a de charge independently or through a command assignment of judges to the public prosecutor, vide Section 160 subsection (1) the letter c , which States, "in the event that there is a profitable good witness nor the incriminating the defendants listed in the lawsuit and pelimpahan letter or requested by the accused or counsel or the public prosecutor during the hearing or before the overthrow of the ruling, the judge presiding the Council is obliged to hear the witnesses". More m. Yahya Harahap, in his Discussion, problems and application of CODE of CRIMINAL PROCEDURE Chapter II, PT. Garuda Metropolitan Press, May 1988, p. 693, stating, "article 160 paragraph (2) Letter c imposes a legal obligation to the judge presiding the trial to hear witnesses. ... Therefore any witnesses who have been examined by investigators, and the witnesses listed in the mandatory docket, pelimpahan heard his statement in advance of the trial without the incriminating witnesses or question mengentengkan of the defendant ". 3. That the Act a quo firmly stated there is still a chance the applicant to file additional witnesses submitted 66 defendants or the public prosecutor and, "not only against the witnesses that have been listed in the pelimpahan file that has been checked by investigators ... but the witnesses ... outside of the witnesses who have been listed in the top pelimpahan docket ... The judge Presiding the trial "mandatory" listening ". 4. That the provision of a quo is a form of public protection (general prevention) is given by the State against any person who sits as a suspect/defendant. That favorable witnesses and examination of witnesses a de charge is not hindered by the CODE of CRIMINAL PROCEDURE, even acknowledged by the applicant that the CODE of CRIMINAL PROCEDURE has stepped up one stage further in outlining the mandate of article 1 paragraph (3) and article 28D Constitution. With not a witness whom he calls de charge filed by the suspect or the accused, does not mean eliminate suspects because suspects are still protected by the legislation which States that in proceeding in accordance with clause 160 paragraph (2) Letter c CODE of CRIMINAL PROCEDURE, suspects or defendants can still ask witnesses and witnesses that relieves a de charge. So according to the Government the entire process of investigation, prosecution, the judiciary in advance up to the verdict of the Court have appropriate procedures in force and were in accordance with the laws in force as well as the invitation reflects the judicial process (due process of law). Based on the description, the Government requested the Chairman of the Constitutional Court Judges of the Tribunal/appeal the applicant is unacceptable (niet ontvankelijk verklaard). III. Explanatory Material charge against Government Petitioned for tested by the applicant. The Applicant filed his petition in the testing (constitutional review) against the provisions of article 26 and numbers figure 1 27, article 65, article 116 paragraph (3) and subsection (4) and Section 184 subsection (1) letter a Act No. 8 of 1981 on the law of criminal procedure which States: article 1 the number 26 CODE of CRIMINAL PROCEDURE:


67 Witnesses are those who can give information to the interests of the investigation, prosecution and the judiciary about a criminal cases he heard himself, he sees himself and he experienced. Article 1 point 27 CODE of CRIMINAL PROCEDURE: witnesses is one tool evidence in criminal cases in the form of information from witnesses about a criminal event he heard himself, he sees himself and he experienced with the mention of the reason of his knowledge of it. Article 65: CODE of CRIMINAL PROCEDURE a suspect or the accused has the right to dress and ask witnesses and or someone who has special skills in order to provide information that is favorable to him. Article 116 paragraph (3) of the CODE of CRIMINAL PROCEDURE: in the examination of the suspect is asked whether he wants he heard witnesses who can be profitable for him and if there is then it is noted in the news event. Article 116 paragraph (4) of the CODE of CRIMINAL PROCEDURE: in the event mentioned in paragraph (3) the investigator is obligated to call and examine witnesses. Section 184 subsection (1) of the CODE of CRIMINAL PROCEDURE: a valid instrument of evidence is: a. witnesses; The above provision by the applicant is deemed contrary to the provisions of article 1 paragraph (3) and article 28D paragraph (1) of the Constitution of the Republic of Indonesia in 1945, which States: article 1 paragraph (3) of the Constitution: the State of Indonesia is a country of law. Article 28D paragraph (1) of the Constitution: everyone has the right to pergakuan, assurance, protection and legal certainty of fair and equal treatment before the law. Over such matters, the Government can give explanations as follows: a. that the principal applicant's application with the register matter Number 11/PUU-VIII/2010, in essence stating that the provisions of article 65 of the Act No. 8 of 1981 on the law of criminal procedure, is considered potentially detrimental to the rights of the applicant, due to an unconstitutional interpretation 68 done by law enforcement officers, particularly for the suspect or the accused to ask the Witnesses and/or Expert that benefit , which can be only denied by law enforcement officers on the grounds there is no obligation for law enforcement officers to receive and examine witnesses and/or expert. That the presumption against the applicant, the Government can be explained as follows: 1. that the provisions of article 65 of the Act No. 8 of 1981 on the book of the law of criminal procedure is not contrary to Article 28D paragraph (1) of the Constitution. The applicant has misinterpreted the norm in article that examined i.e., Article 65 of the Act No. 8 of 1981 on the book of the law of Criminal Procedure Law which in practice the right of the suspect or the accused to ask the witness not only at the level of investigation but at the level of the examination of the trial of the suspect or the accused could bring the experts because in fact description of experts who serve as evidence, as the applicant submitted in their petition on page 16 is a description that is delivered ahead of the trial and under oath. 2. That the applicant in their petition on page 12 paragraph 4 and on a Petitum Solicitation number 2 States that Article 65 of the Act No. 8 of 1981 on the book of the law of criminal procedure and its Explanation has violated the provisions of article 28D paragraph (1) of the Constitution of 1945. The applicant's evidence is evidence that is incorrect because Article 65 of the Act No. 8 of 1981 on the book of the law of criminal procedure and their explanation is not contrary to the Constitution 1945 specially Section 28D subsection (1). On the contrary, article 65 referred to is the embodiment or reflection of Article 28D paragraph (1) of the Constitution of 1945, because of the existence of Section 65 of the Act No. 8 of 1981 on the book of the law of criminal procedure, has accommodate the implementation of the rights of the suspect or the accused in accordance with the provisions of article 28D paragraph (1) of the Constitution of 1945.

69 b. that according to the applicant with the register matter Number 65/PUU-VIII/2010, in their petition on the point stated that the rights of the applicant to request the information be heard witnesses who are considered favorable to the Petitioners on the basis of the provisions of article 65 juncto Article 116 paragraph (3) and paragraph (4) of law No. 8 of 1981 on the law of criminal procedure, which was rejected by the Investigators and the officers of the Attorney General is clearly detrimental to the constitutional rights of the Petitioner guaranteed by the Constitution. The source of the denial, according to The Applicant based on the provisions of article 1 point 27 of Act No. 8 of 1981 on the law of criminal procedure, about the witnesses connected with the provision of article 65 juncto Article 116 paragraph (3) and (4) and Section 184 subsection (1) letter a Act No. 8 of 1981 on the law of criminal procedure. That article 1 numbers 26 and 27 of the Act number a quo according the applicant also applied in "discriminatory" by Investigators because it only applies to witnesses of fact, witnesses the event and witness just damning, but not against a witness or witnesses favourable à de charge for Applicants (application number Applicant vide 19 page 28). In their petition that the applicant regards 20 37 numbers which in anyway asserting arbitrary deeds committed by investigators and officers of the Attorney General's Office who did not want to call favorable witnesses The Applicant to the detriment of the applicant's constitutional rights will not happen again if their petition was granted. That the presumption against the applicant, the Government can be explained as follows: 1. That the provisions of article 1 26 grain Act No. 8 of 1981 on the law of criminal procedure (CODE of CRIMINAL PROCEDURE) stated, "the witness is a person who can provide information to the interests of the investigation, prosecution and the judiciary about a criminal cases are heard on its own, he sees himself and he experienced with the mention of the reason of his knowledge". Whereas article 1 grain of 27 States, "of witnesses is one tool evidence in criminal cases he heard himself, he sees himself and he experienced with the mention of the reason of his knowledge".

70 that according to m. Yahya Harahap, in his Discussion, problems and application of CODE of CRIMINAL PROCEDURE Chapter I, PT Pustaka Kartini, December 1993, page. 146, witnesses said, as appropriate for the benefit of yustisial, quite appropriately noted the explanation of article 1 grain of 27, linked with the Article 116 paragraph (2): the witness must give an actual description of the actual description, namely with respect to criminal acts which are being examined. Places traveled in examining a witness is the criminal offence being examined itself, so the investigators actually getting the intrinsic truth of events that criminal acts of the witnesses, in the way the boundaries that do not contain the pressure and coercion. Elements of the right of witnesses relevant to the interests of Justice or yustisial is a description of the intended by article 27 and article grain 1 185 subsection (5). With this affirmation investigators already can direct examination of witnesses: a description of an event, he heard the criminal, not the result of a story or hearing results from other people. Should be directly personally heard by witnesses of its own about the criminal event in question, he sees his own means at the time of the incident or occurrence of the sequence of events of the criminal who actually witnessed by my own eyes. That article 1 grain 27 CODE of CRIMINAL PROCEDURE will not adversely affect the applicant's constitutional rights, because the article is linked to article 185 paragraph (5) of the CODE of CRIMINAL PROCEDURE aims to let investigators get the very essence of the truth of the incident a criminal act are not the opinions or the results obtained from the invention of thought alone. Thus the provisions of the CODE of CRIMINAL PROCEDURE article 1 27 grains aims for the benefit of yustisial in order to get the essence of the truth of criminal events as well as providing guarantees and legal protection for suspects and defendants in order not suspected or indicted is not based on real facts. 2. Article 65 that the CODE of CRIMINAL PROCEDURE States, "the suspect or the accused has the right to dress and ask witnesses and or someone who has special skills in order to provide information that is auspicious for him". That during the examination, an applicant investigators upfront (suspects) may apply to the Ombudsman in order to review the favorable witnesses


71. The examination of a witness or witnesses with a lucrative de charge for suspect in terms of the law is mandatory, as is the provision of article 116 paragraph (4) of the CODE of CRIMINAL PROCEDURE in case the suspect stated that he would ask a witness which is advantageous for her investigators "obligatory" call and examine witnesses. That according to m. Yahya Harahap, in his Discussion, problems and application of CODE of CRIMINAL PROCEDURE Chapter I, PT Pustaka Kartini, December 1993, page. 142, stating, on the issue of legal liability for the investigator to call and examine witnesses a de charge may need a bit of question i.e. to where this obligation to be fulfilled by the investigator? Starting from the principle of dotted and the purpose of your own CODE of CRIMINAL PROCEDURE, perhaps there are precisely in order to be a legal obligation which charged Article 116 paragraph (4), restricted all need proper to the profit interests of suspects. If there is already bad symptoms appear in asking witnesses a de charge towards the course of the examination, have made sport resolved or remove the liability of the investigator to memanggll and examine witnesses a de charge asked the suspect. 3. That thus, then even though the investigator is obliged to summon and examine witnesses a de charge, but of course the witness must witness that in accordance with the provisions of the CODE of CRIMINAL PROCEDURE article 1 27 grains aims for the benefit of yustisial in order to get the essence of the truth of criminal events as well as providing guarantees and legal protection for suspects and defendants as well as it should be also noted its relevance for substantiation so as not to give rise to barriers against the course of the examination. 4. That the applicant in the figure 7 page 23 of them are substantially stated, "the provisions of article 14 paragraph (3) of the International Covenant on Civil and political rights are indeed animates the formulation of article 65 and article 116 paragraph (3) of the CODE of CRIMINAL PROCEDURE. Even the CODE of CRIMINAL PROCEDURE step one stage forward, with Iebih requires that investigators call and examine witnesses favourable to it (verse 4) ". Thus it can be interpreted that the applicant has acknowledged the existence of the guarantee of the Act in the sense of article 65 and article 116 has been in accordance with Konvenan of the civil rights and political rights in 1966 against the rights of the applicant as a suspect.

72 5. That the provisions of article 14 paragraph (3) of the International Covenant on Civil and Political Rights (1996), which reads "In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (e) To examine, or have examined, the witnesses on his behalf under the same conditions the U.S. witnesses against him" (in determining the alleged criminal acts , everyone is entitled to the following minimum guarantees, in full equality to check or ask diperiksanya, memberatkannya witnesses and asked the witnesses dihadirkannya meringankannya with the same terms as witnesses memberatkannya). Thus witnesses that relieves any must be a witness as provided for in Article 27 grains 1 CODE of CRIMINAL PROCEDURE. That based on the above explanation, according to the Government the provision of article 26 and numbers figure 1 27, article 65, article 116 paragraph (3) and subsection (4) and Section 184 subsection (1) letter a Act No. 8 of 1981 on the law of criminal procedure is not contrary to article 1 paragraph (3) and article 28D paragraph (1) of the Constitution the Constitution of 1945, also not adversely affect rights and/or constitutional authority to the applicant. c. that the applicant in their petition that essentially States that the arbitrary deeds committed by investigators and officers of the Attorney General's Office who did not want to call favorable witnesses the applicant is detrimental to the applicant's constitutional rights will not occur again if the petition is successful, according to a Government not based on legal reasons as follows: 1. The applicant has been designated as a suspect the perpetrators of criminal acts of corruption that are assigned based on the Director's Investigation Warrant Investigation Attorney General Special Youth Crime Number Print-79/F 2/Fd. 1/06/2010 June 24, 2010, is alleged to have committed the crime of corruption charges an access fee and the cost of the reception Country instead of taxes (PNBP) on the system of administrative legal entities the Department of Justice and human rights of INDONESIA by the Attorney General of INDONESIA. That team is currently Investigating Prosecutor still continues to do the investigation against Sisminbankum who allegedly involving the petitioner.

73 2. That the Attorney General's Office has been conducting the examination of witnesses to relieve (a de charge) to the desired by the applicant namely witness Jusuf Kalla (former Vice President of RI) and Kwik Kian Gie (former Coordinating Minister for Ekuin), which has been called and examined as a witness to relieve applicants on January 5, 2011. 3. That the Attorney General's Office Investigator Team certainly will not treat the applicant as if as a bread seller motor cycling in Makassar that hit a man on the street to die and asked President Susilo Bambang Yudhoyono witnessed the profitable, certainly is not a reasonable request (vide application Applicant numbers 18 page 9). However, a team of Investigators also will not just rashly equate the applicant as Ahmad, who was suddenly arrested on charges of robbing and killing the owner of a gold shop in the market Recently, and despite the alibi that Ahmad while Genesis was in Pondok Indah Mosque became a Priest praying maghrib and then give kultum (vide Pemohonan Applicant number 35 page 17). 4. That the Attorney General of INDONESIA in accordance of article 1 mandate figures 26 and 27 jo figures. Article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a Act No. 8 of 1981 on the law of criminal procedure expressly authorized Prosecutors to call witnesses who relieve (a de charge) for a suspect, in enforcing the law that is based on certainty and fairness of the law. 5. That the principles set forth in the articles of a quo does not allow another interpretation (uitzondering exception,) against what is referred to as a "witness", therefore the principle applies to all cases of case irrespective of the reasons that the applicant submitted, that the witness should not be people who see, hear and experience it yourself. 6. In the practice of calling witnesses to relieve the commonly used to delay the process of accelerated proceedings, as a result, such petition has become a motif aspects influenced mode and bad faith to delay corruption eradication agenda currently being actively worked on by Jaksa. If the applicant filed the petition is granted, then it will be a reason to call a witness incriminating 74/a charge without the need to pay attention to that whether incriminating witnesses saw himself, his own experience and hear his own acts committed by the suspect/accused, so that there is no legal certainty and fairness for the suspect/accused and the community. 7. If the application for judicial review the applicant's Trial is granted by the Constitutional Court, then it can be a detriment to other citizens constitutional rights that should get the right konstitusionalnya based on a witness description of incriminating the witness and a charge over the Court ruling which has a magnitude of the law anyway, since if then the petition of the applicant was granted by the Tribunal, then the proper interpretation of similar should also be treated against incriminating witnesses (a charge) for the suspect/defendant , which obviously will surely harm the suspect/defendant because thus the investigator or the Prosecutor may seek or ordered investigators to find witnesses incriminating/a charge without having to provide information related to a criminal even though he did not hear it myself, no he Iihat himself, and there he experienced. IV. Conclusion based on the above explanation, the Government appealed to his Excellency the Chairman of the Constitutional Court Judges of the Tribunal/the checking, disconnect and try the application for testing Act No. 8 of 1981 on the law of criminal procedure against the Constitution of the Republic of Indonesia in 1945, can give a verdict as follows: 1. to declare that the applicant has no legal position (legal standing); 2. Refuse the application for testing applicants for entirely or Sha-whether appeal Applicant testing is unacceptable (niet onvankelijk verklaard); 3. Accept the Description of the Government as a whole; 4. Declaring the provisions of article 26 and numbers figure 1 27, article 65, article 116 paragraph (3) and subsection (4) and Section 184 subsection (1) letter a Act No. 8 of 1981 on the law of criminal procedure is not contrary to article 1


75 subsection (3) and article 28D paragraph (1) of the Constitution of the Republic of Indonesia in 1945. However, if his Excellency the Chairman of the Constitutional Court Judges Assembly/argues another, please wise ruling and seadil-fair (ex aequo et bono). [2.4] considering that the petition against the applicant, Representatives give affidavits without dates, April 2011 the Clerk accepted the Constitutional Court on the 15th of April 2011, elaborates as follows: 1. The position of the law (Legal Standing) Applicant qualifications that must be met by the applicant as a party have been regulated in article 51 paragraph (1) of LAW Number 24 year 2003 on the Constitutional Court (hereinafter abbreviated to MK ACT). Article 51 paragraph (1) of the ACT the COURT stated that: "the applicant is a party which considers the right and/or authority konstitusionalnya harmed by the enactment of the Act, namely: a. the individual citizen of Indonesia; b. the unity of Community law all still alive and in accordance with the development of the celebrated and the principle of the unitary State of the Republic of Indonesia that is set in the legislation; c. a public or private legal entities; or d. the institutions of State. " Further, the explanation of article 51 paragraph (1) of the ACT the COURT stated that: "is the ' konstitusioanal ' rights are rights that are explicitly set in the Constitution of the Republic of Indonesia in 1945." So, only the rights explicitly regulated in the Constitution which is the "constitutional rights". Meanwhile, the limitation of losses can be found in the jurisprudence of the Constitutional Court's Verdict on the matter Number 066/PUU-III/2005 and Number 011/PUU-V/2007. Based on the ruling of the Constitutional Court has given the limits of constitutional losses must meet five conditions, namely: a. the existence of rights 76 and/or the applicant's constitutional authority granted by the CONSTITUTION of the Republic of Indonesia in 1945; b. that rights and/or constitutional authority the Applicant is deemed by the applicant have been wronged by an act that was tested; c. that the loss of rights and/or constitutional authority in question are specific (Special) and actual or potential nature at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship (causal verband) between the losses and the enactment of legislation which petitioned testing; e. of the possibility that by dikabulkannya the petition then loss and/or constitutional authority who postulated it will not or no longer occur. Thus, when a person or certain parties want to be accepted as an applicant who has the position of law (legal standing) in the application for testing legislation against the Constitution, then the first must explain and prove: a. credentials as the applicant in the application for a quo as set in article 51 paragraph (1) of the ACT the COURT; b. rights and/or authority konstitusionalnya deemed to have harmed sebagaima referred to in the Description of article 51 paragraph (1) of the ACT the COURT; c. the constitutional harm must meet certain conditions in line with the jurisprudence of the Court (Docket Number Verdict 066/PUU-III/2005 and Number 011/PUU-V/2007). Based on the above description, the HOUSE of REPRESENTATIVES holds that the applicant must be able to prove first whether the applicant as a party which considers that its rights and/or authority konstitusionalnya harmed over the enactment of laws that appealed the test, particularly in the presence of a mengonstruksikan loss against the right and/or authority to konstitusionalnya as a result of provisions that petitioned to be tested. Against the position of the law (legal standing), the HOUSE of REPRESENTATIVES argued that the Applicant was not questioned by the question of the constitutionality of norms but rather a question of the application of the norm. According to the views of PARLIAMENT Norm of article 65 CRIMINAL PROCEDURE CODE does not conflict with the norms of the Constitution, 77 is very necessary to protect the rights of suspects and defendants are either in the process of peryidikan or in the process of case examination in the courts. However, PARLIAMENT remains handed over entirely to the Chairman/the Constitutional Court Judges Assembly mulya to consider and assess whether the applicant has the legal position (legal standing) as set forth in article 51 paragraph (1) of the ACT the COURT as well as the ruling of the Constitutional Court Docket Number 066/PUU-III/2005 and Number 011/PUU-V/2007. 2. Testing law No. 8 of 1981 on the law of criminal procedure (CODE of CRIMINAL PROCEDURE) of the applicant in the application for a quo outlines that konstitusionalnya has been harmed by the enactment of article 1 the numbers 26 and 27 figures linked with the CODE of CRIMINAL PROCEDURE Article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a CODE of CRIMINAL PROCEDURE. The formulation of article 1 the numbers 26 and 27 digits CODE of CRIMINAL PROCEDURE have been menimbukam over the interpretation of article 65 multi juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a CODE of CRIMINAL PROCEDURE. Therefore, according to the applicant, such clauses conditionally is unconstitutional (conditionally unconstitusional), which is contrary to article 1 paragraph (3) and article 28D paragraph (1) of the Constitution. Against the view of the Applicant, REPRESENTATIVES testified as follows: 1) that, in the application for a quo, the applicant argues that Article 65 and article 116 paragraph (3) of the CODE of CRIMINAL PROCEDURE had been in line with the due process of law, the CODE of CRIMINAL PROCEDURE has stepped even further single-stage with oblige investigators summon and examine witnesses favourable to it (paragraph 4). Further, the applicant concludes that the norm was in line with the rule contained in article 28D paragraph (1) of the Constitution (vide Solicitation number 7 p. 23) and article 1 paragraph (3) of the Constitution (vide Solicitation number 20 p. 28). 2) that, according to the applicant, with the formulation of article 1 the numbers 26 and 27 digits CODE of CRIMINAL PROCEDURE has obscured the existence of favorable witnesses as set in article 65 and article 116 paragraph (3) of the CODE of CRIMINAL PROCEDURE, because of the sense of a witness who formulated in article 26 1 number is merely limited to the facts or witnesses witness events (vide 78 Petition number 15 p. 26). In other words, the formulation of the definition of a witness in article 1 the number 26 did not accommodate the sense of ease and witnesses witnesses a de charge. So it is with the notion of witnesses in article 1 point 27 stating that the eyewitness is a valid instrument of evidence of a criminal event he heard himself, he sees himself and he experienced. Understanding such witnesses are not always applicable to favorable witnesses and witnesses a de charge (vide Solicitation number 19 p. 28). 3) That against the proposition in the petition for a quo, the HOUSE does not agree with the applicant that States that the article 1 numbers 26 and 27 digits CODE of CRIMINAL PROCEDURE has a weakness of substance. The HOUSE also disagree in article 1 the numbers 26 and 27 numbers conditionally stated CODE of CRIMINAL PROCEDURE was unconstitutional (conditionally unconstitusional). According to the view of the Parliament, article 1 the numbers 26 and 27 digits CODE of CRIMINAL PROCEDURE actually does not have weaknesses in formulating the notion of witness (Figure 26) and the witnesses (Figure 27). The sense of witnesses and witnesses in article 26 and numbers figure 1 27 CODE of CRIMINAL PROCEDURE should be meant includes 3 types of categories of witnesses referred to by the CODE of CRIMINAL PROCEDURE, namely: (a) the witnesses witnesses fact or event; (b) favourable witnesses; and (c) witnesses a de charge. Not only as a fact witness or witnesses of events. Thus, it can be a third meant that kind of witness along with his statement that is to be submitted should be judged is coupled with a criminal disangkakan events, either through hearing, seeing or experiencing it myself. 4) thought that, in line with the above explanation of article 185 paragraph (1) which States that: "in the description of a witness does not include information that is retrieved from another person or testimonium de auditu". So, the description given by someone who's just heard from others (de auditu testimonium or hearsay evidence) was not an eyewitness. Article 185 paragraph (5) of the CODE of CRIMINAL PROCEDURE also confirmed that: "Good opinion nor fiction, derived from the thought alone is not an eyewitness". The existence of the limitation thus article 1 numbers 26 and 27 digits CODE of CRIMINAL PROCEDURE does not conflict with


79 rules Article 28D paragraph (1) of the Constitution contains the rules guarantee, protection and legal certainty. When all the witnesses proposed easing the suspect meant should all be examined by investigators then may result in terlepasnya suspects from the snare of the law upon criminal acts that he has done. Terlepasnya a principal – who in fact have committed a criminal offence – due to receive and examine all witnesses proposed easing the suspects can thus negating the principle of guarantees, protection and legal certainty, in particular protection for the victim or society in the broad sense. In other words, when all the witnesses proposed easing the suspect meant should all be examined by investigators will be contrary to constitutional rule as set forth in section 28D subsection (1) of the CONSTITUTION of the Republic of Indonesia in 1945. 5) that, the HOUSE does not agree with the proposition that the claimant stated that the interpretation of Article 65 above multi and article 116 paragraph (3) and paragraph (4) of the CODE of CRIMINAL PROCEDURE is caused by the formulation of article 1 the numbers 26 and 27 digits CODE of CRIMINAL PROCEDURE. The refusal of the investigator to examine witnesses to relieve and a. de charge asked the suspect at the level of investigation it is reasonable and logical with a note that there is a description or reason reasonably sufficient upon refusal. Investigators shall be put forth reasons lead to or no linkages between the witnesses who submitted the suspect with her existence in hearing, seeing or experiencing it myself. Instead, investigators must not refuse a witness that relieves raised by suspects when indeed the witness is heard, seen or experienced themselves. 6) that, in the HOUSE of REPRESENTATIVES holds that the criminal in an event belongs to the conventional crimes (blue collar crime), such as theft, pencopetan, and so forth would certainly be easy to judge whether a witnesses who asked is he listening, seeing and experiencing it for yourself. Instead, in a white collar crime (white collar crime), such as corruption, severe human rights violations, money laundering, and so of course it will be difficult to assess whether a witnesses to relieve and asked is he heard, seen and experienced the 80 itself. In this the necessary sharp an investigator to consider and assess whether a witnesses and relieve witnesses of de charge the proposed coupled or not with the criminal event disangkakan in order not to get caught up from the efforts of a suspect or an accused to escape from the snare of the law. Thus, article 1 the numbers 26 and 27 figures linked with the CODE of CRIMINAL PROCEDURE Article 65 and article 116 paragraph (3) and paragraph (4) of the CODE of CRIMINAL PROCEDURE establishes the constitutional rule which States that Indonesia is a State of law as formulated in article 1 paragraph (3) as well as rules Article 28D paragraph (1) of the Constitution contains the rules guarantee, protection and legal certainty. Therefore, setting about giving an opportunity on the suspect or the accused to ask the witness to relieve and witness a de charge has been in line with the principle of the protection of the rights of suspects (protection against the abuser). Meanwhile, the meaning of the absence of a must for investigators to examine the witnesses proposed easing is also in line with the idea of Community protection (protection for victims) 7) That, according to the HOUSE of REPRESENTATIVES, witnesses, including witnesses and witnesses that relieves a de charge, as one tool evidence referred to Section 184 subsection (1) letter a CODE of CRIMINAL PROCEDURE is irrelevant is associated with the process of investigation. Therefore, the witnesses in question as evidence only the witnesses stated in a court hearing. This is in line with article 185 paragraph (1) of the CODE of CRIMINAL PROCEDURE States that: "the witnesses as evidence is what the witnesses stated in the Court of session". Thus, witnesses in front of investigators is not witnesses. So it is not evidence. Witnesses in front of the investigating judge as a guide only to examine the matter in the Council. Thus, less precise apablia of witnesses in the sense of article 1 point 27 CRIMINAL PROCEDURE CODE connected with the refusal of the examination of a witness which relieve and witness a de charge at the level of investigation. The notion of witnesses in article 1 point 27 CODE of CRIMINAL PROCEDURE and its power as a means of proof referred to Section 184 subsection (1) of the CODE of CRIMINAL PROCEDURE only letter a 81-related examination in front of the Court. 8) that according to the views of PARLIAMENT, though it has some weaknesses, the CODE of CRIMINAL PROCEDURE already provides protection against the community to avoid arbitrariness investigators in conducting such investigation, action in the event of arrest, detention, seizure, and shakedown. In addition, the CODE of CRIMINAL PROCEDURE have been set that in the overthrow of the criminal must be supported by at least 2 valid instrument of evidence. This is regulated in article 183 CODE of CRIMINAL PROCEDURE States that: "judges must not drop criminal to someone unless with at least two legitimate evidence he gained confidence that a crime actually occurred and that the terdakwalah are guilty of doing it". These settings will bring juridical consequences for investigators in setting someone into a suspect certainly should be supported by at least 2 evidence. So, the investigator cannot be arbitrary to assign one becomes suspect. CODE of CRIMINAL PROCEDURE has also been set up that before doing the investigation, in which case certain things in advance to do an investigation. 9) that based on the facts and the diuraiakn explanation of REPRESENTATIVES argued that article 1 figure 27 and Figure 26 juncto Article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a CODE of CRIMINAL PROCEDURE is not contrary to article 1 paragraph (3) and article 28D paragraph (1) of the Constitution. Thus, the HOUSE of REPRESENTATIVES may invoke the Tribunal Chairman/the glorious Constitution Judges give amar verdict as follows: 1. the appeal a quo refused to entirely or at least declare the petition a quo is unacceptable; 2. Declare the HOUSE accepted description for entirely; 3. Declares article 1 figure 27 and Figure 26 juncto Article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a CODE of CRIMINAL PROCEDURE is not contrary to article 1 paragraph (3) and article 28D paragraph (1) of the CONSTITUTION of 1945;

82 4. Article 1 States the numbers 26 and 27 numbers juncto Article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a fixed CODE of CRIMINAL PROCEDURE have the force of law. [2.5] considering that to shorten the blurb in this ruling, everything that happens in the trial simply appointed in the news events of the trial, which is a single entity which was not separated by this ruling; 3. LEGAL CONSIDERATION [3.1] considering that the goal and purpose of the petition of the applicant is to test constitutionality chapters in law No. 8 of 1981 on the law of criminal procedure (State Gazette of the Republic of Indonesia Number 76 in 1981 and an additional Sheet of the Republic of Indonesia Number 3209, hereinafter referred to as the book of the law of criminal procedure or the abbreviated CODE of CRIMINAL PROCEDURE), which States: article 1 the numbers 26: "Witness is a person who can provide information to the interests of the investigation and the judiciary, the prosecution of a criminal he heard himself, he Iihat himself and he experienced myself. " Article 1 point 27: "eyewitness is one tool evidence in criminal cases in the form of information from witnesses about a criminal event he heard himself, he sees himself and he experienced with the reason of his knowledge of it." Article 65: "the suspect or the accused has the right to dress and ask witnesses and or someone who has special skills in order to provide information that is auspicious for him."

83 Article 116 paragraph (3): "in the examination of the suspect is asked whether he wants he heard witnesses who can be profitable for him and if there is then it is noted in a news event." Article 116 paragraph (4): "in the case referred to in subsection (3) the investigator is obligated to call and examine witnesses." Section 184 subsection (1) letter a: "valid instrument of evidence is: a. witnesses;" against the Constitution of the Republic of Indonesia in 1945 (the Constitution), which States: article 1 paragraph (3): "the State of Indonesia is a country of laws." Article 27 paragraph (1): "all citizens simultaneously its position in law and Government and obliged to uphold the law and rule it with no kecualinya." Article 28D paragraph (1): "everyone is entitled to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law" article 28 h subsection (2): "everyone has the ease and special treatment to obtain the same benefits and opportunities in order to achieve equality and justice." Article 28I paragraph (2): "everyone has the right to be free from discriminatory treatment on the basis of anything and is entitled to protection against discriminatory treatment." Article 28I paragraph (4): "the protection, promotion, enforcement, and the fulfilment of human rights is the responsibility of the State, especially the Government."


84 Article 28I paragraph (5): "to uphold and protect human rights in accordance with the principles of a democratic State of law, then the implementation of human rights is guaranteed, set up, and poured in laws-invitation" that the applicant argued that the notion of witness which is set out in the articles of CRIMINAL PROCEDURE CODE a quo is detrimental to the applicant because the Applicant did not result in a sense can ask witnesses to relieve (a de charge) that is not heard , see, and experience the events disangkakan or didakwakan, as well as potential disangkakan or didakwakan to the applicant; [3.2] considering that before considering the subject matter of the petition, the Constitutional Court (hereinafter the Court) in advance will take into account: a. the authority of the Court to examine, judge, and break the petition a quo; b. the position of the law (legal standing) of the applicant to apply for a quo; The authority of the Court [3.3] considering that under article 24C paragraph (1) of the Constitution and article 10 paragraph (1) letter a Act No. 24 of 2003 on the Constitutional Court (State Gazette of the Republic of Indonesia Number 98 in 2003, an additional Sheet of the Republic of Indonesia Number 4316) as amended by law No. 8 year 2011 about the changes to the Act No. 24 of 2003 about the Constitutional Court of the Republic of Indonesia Sheet (year 2011 Number 70 Additional Sheets, the Republic of Indonesia Number 5226, hereinafter referred to as the ACT of the CONSTITUTIONAL COURT), as well as to article 29 paragraph (1) letter a Act No. 48 in 2009 about the Power of Justice (State Gazette of the Republic of Indonesia year 2009 Number 157, an additional Sheet of the Republic of Indonesia Number 5076, hereinafter the ACT 48/2009), one of the powers of the Constitutional Court is adjudicating 85 on the first and last level that an award is final to examine legislation against the Constitution; [3.4] considering that the applicant's application is therefore to test the constitutionality of norms of the legislation, namely Article 26 1 number and number 27; Article 65; Article 116 paragraph (3) and subsection (4); as well as of article 184 paragraph (1) of the CODE of CRIMINAL PROCEDURE against a Constitution, which became one of the powers of the Court, then the Court is authorized to inspect, judge, and break the petition a quo; The position of the law (Legal Standing) the applicant [3.5] considering that under article 51 paragraph (1) of the ACT the COURT along with his explanation, which can apply for testing legislation against the Constitution are those who consider the rights and/or konstitusionalnya the authority granted by the CONSTITUTION of 1945 harmed by enactment of a statute, namely: a. the individual citizen of Indonesia (including groups of people having the same interests); b. the unity of Community law all still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation; c. a public or private legal entities; or d. the State institutions; Thus, the applicant in testing legislation against the Constitution should explain and prove in advance: a. position as the applicant referred to Article 51 paragraph (1) of the ACT the COURT; b. loss of rights and/or constitutional authority given by the Constitution arising from the enactment of law petitioned testing; [3.6] Considering that Court since the ruling of the Constitutional Court the number 006/PUU-III/2005 dated May 31, 2005 and the ruling of the Constitutional Court number 11/PUU-V/2007 dated 20 September 2007, 86 and subsequent Awards held that the loss of rights and/or constitutional authority as intended by article 51 paragraph (1) of the ACT the COURT must meet five criteria, namely: a. the existence of rights and/or constitutional authority the applicant granted by the Constitution; b. rights and/or the constitutional authority by the applicant are considered impaired by the enactment of legislation which petitioned testing; c losses must be the specific constitutional (Special) and the actual potential or at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship (causal verband) between the losses in question and the enactment of legislation which petitioned testing; e. of the possibility that by dikabulkannya the petition then postulated that such a constitutional harm will not or no longer occur; [3.7] considering that based on the descriptions as at paragraph [2.2] and [3] above, then the Court will consider the legal position concerning (legal standing) of the applicant in the application for a quo as follows: [3.7.1] that the applicant argued that as an individual citizen of Indonesia who have constitutional rights that are set in article 1 paragraph (3); Article 27 paragraph (1); Article 28D paragraph (1); Article 28 h subsection (2); Article 28I paragraph (2); Article 28I paragraph (4); and article 28I paragraph (5) of the CONSTITUTION of 1945, aggrieved due to the enactment of the provisions of article 1 point 27-26 and numbers associated with article 65 juncto Article 116 paragraph (3) and paragraph (4) juncto Article 184 paragraph (1) letter a CODE of CRIMINAL PROCEDURE; [3.7.2] that by basing on article 51 paragraph (1) of the ACT the COURT and Court rulings regarding the position of the law (legal standing) as well as associated with the postulates of a constitutional disadvantage experienced by the applicant, according to the Court, the applicant had a constitutional rights are harmed by the enactment of regulations that petitioned testing. The loss is specific and there is a causal relationship (causal verband) between the losses is the enactment of law petitioned testing; Thus, the Court held the applicant has legal position (legal standing) to apply for a quo;

87 [2.4] considering that because the court authorities inspect, judge, and break the petition a quo, and the applicant has the legal position (legal standing) then the Court will consider the subject matter of the petition; The Court's opinion the subject matter of the petition [2.4] considering that the principal applicant's application is a test Article 1 point 27-26 and numbers; Article 65; Article 116 paragraph (3) and subsection (4); and section 184 subsection (1) letter a CODE of CRIMINAL PROCEDURE against the CONSTITUTION of 1945; [3.10] considering that based on the postulates of the petition of the applicant, a description of the Government, the Parliament, captions and facts are revealed in court, legal issues to be considered by the Court was of the i) understanding of the witness; filing of petition II) witness by suspects and accused; III) the calling of witnesses; and iv) Authority assess the relevance of the testimony. To address the legal issues the court give the following considerations: [3.11] considering that essentially criminal procedure law contains norms that balance between the interests of the individual and legal interests of the community as well as the law of the country, because it is essentially in the criminal law, individuals and/or communities dealing directly with the State. This puts the relationship of the individual and/or the community in a weaker position. In this case, the law of criminal procedure serves to limit State power is exercised by the investigator, the investigator, the public prosecutor, or judge, in the process of criminal justice against individuals and/or communities, especially suspects and defendants involved in the process; [3.12] considering that the rights of a person remain attached to him even though he has been designated as a suspect or defendant. Therefore, in a State of law, the law of criminal procedure are positioned as a means of enabling the execution of legal process is run in a fair manner (due process of law) for the sake of respect for human rights, which among other things includes efforts


88 protection against arbitrary actions of the State officials, granting various guarantees for suspects and accused persons to fully defend themselves, the application of the principle of presumption of innocence, as well as the application of basic equations in the presence of the law; [3.13] considering that concerning the notion of "witnesses" as intended by article 26 and numbers figure 1 27 juncto Article 116, article 65 paragraph (3) and subsection (4), as well as of article 184 paragraph (1) of the CODE of CRIMINAL PROCEDURE, based on a letter of interpretation according to language (grammatically) and pay attention to the connection with the other articles in the CODE of CRIMINAL PROCEDURE, is a person who can provide information to the interests of the investigation, prosecution, and trial of a criminal offence which he heard himself , he saw himself, and he's experienced. In summary, the Court judge referred to the CODE of CRIMINAL PROCEDURE by witnesses is the only person who hear, see, and experience the events disangkakan or didakwakan; According to the Court, understanding the favorable witnesses in the CODE of CRIMINAL PROCEDURE Article 65 cannot be interpreted narrowly with reference to Article 26 and numbers figure 1 27 CODE of CRIMINAL PROCEDURE only. The sense of a witness as stated in article 1 the numbers 26 and 27 digits CODE of CRIMINAL PROCEDURE provide restrictions even eliminates the opportunity for the suspect or the accused to submit to him a favorable witness because the phrase "he heard himself, he sees himself and he experienced" requires that the only witnesses who heard themselves, see for yourself, and experience an act/criminal acts that can be put forward as a witness. In fact, the context of proof or charges not just supposition to prove whether a suspect or defendant's conduct or engage certain criminal acts/deeds; but also include proof that an act/crime is actually going on. In the context of proof as to whether an act/crime actually occurred; and prove whether the suspect or accused is actually doing or are involved specified criminal acts/deeds, the role of witness to the alibi became important, although he did not hear himself, he is not meIihat himself, and he don't experience myself the existence of works/criminal acts committed by the suspect or accused; A witness in the formulation of article 1 the numbers 26 and 27 digits CODE of CRIMINAL PROCEDURE does not include the notion of witness alibi, and generally deny the existence of the types of witnesses 89 anyway that can be classed as a favourable witness (a de charge) to the suspect or accused, among other things, the witness testimony is needed to clarify the testimony of witnesses; Therefore, according to the Court, the significance of a witness is not on whether he saw, heard, or experienced an incident of criminal, but rather on the relevance of his testimony with the criminal cases which are being processed; [3.14] considering that the problem is related to a party who has the authority to assess whether the witness asked the suspect or the accused has relevance to the supposition or claim, the Court held that investigators are not allowed to assess the information expert and/or a favorable witness or suspect the defendant, prior to actually call and examine witnesses and/or expert concerned; The Court's judge, the investigating duty to summon and examine witnesses favourable to the suspect was not paired with the authority of investigators to assess whether a witnesses presented have relevance or not with a criminal disangkakan, before the witness in question was called and examined (heard his testimony). Similarly, with the authority of the public prosecutor and the judge to assess the relevance of the new witnesses can be done after the calling and examination of witnesses who filed the suspect or defendant, to further determine if the suspect meets all elements of the criminal offence and the defendant is increased to worthy status; [3.15] considering that, according to the Court, the setting or the sense of a witness in the CRIMINAL PROCEDURE CODE, as set forth in clauses petitioned testing raises a sense multitafsir and violates the principle of the lex certa principle as well as the general principle of lex stricta in the formation of criminal invitation-militate. Multitafsir provisions in the law of criminal procedure can lead to legal uncertainty for citizens, as in the law of criminal procedure dealing between the investigator, the public prosecutor, and the judge who has the authority to examine with the suspect or the accused has the right to obtain legal protection;

90 thus, provisions of the calling and examination of witnesses and/or expert that is favorable to the suspect or accused, as provided for in article 65 juncto Article 116 paragraph (3) and paragraph (4) of the CODE of CRIMINAL PROCEDURE, must be interpreted can be done not only in the stage of the proceedings in the Court, but also in the stage of investigation. Negate the rights of the suspect or the accused to file (call and check) witnesses and/or expert that is favorable to the defendant or the suspect himself at this stage of investigation, and just call the witnesses that are beneficial at this stage of the examination on the face of the Court, a breach of article 1 paragraph (3) and article 28D paragraph (1) of the CONSTITUTION of 1945; Filing of witnesses and/or expert, who became suspects or defendants, on the other hand is an obligation for the investigator, public prosecutor or judge to summon and examine witnesses and/or expert a quo. So is the part at the same time the application of the principle of due process of law in the criminal justice process, and the efforts of realizing a fair legal certainty in a country of law. Nevertheless, should still note that the filing of a witness or expert who is favorable to the suspect or defendant in criminal justice process is not to obstruct the criminal law ditegakkannya. Although the suspects or accused persons are protected by the law of criminal procedure however remains to be aware of the limits of reasonableness and the legal interests of the community are also represented by the State; [3.16] considering that the applicant's plea concerning petitum of the constitutional and juridical implications to investigators at the Attorney General's Office of the Republic of Indonesia who examined Claimant to summon and examine witnesses benefit requested by the applicant namely Megawati Sukarnoputri, HM Jusuf Kalla, Kwik Kian Gie, and Susilo Bambang Yudhoyono, according to the Court is a concrete case which is not a court's authority, therefore the applicant's petition is unwarranted for the proposition of law; [3.17] considering that on the basis of the considerations above, the Court held Article 1 point 27-26 and numbers; Article 65; Article 116 paragraph (3) and subsection (4); Section 184 subsection (1) letter a CRIMINAL PROCEDURE CODE contradict the Constitution all notions of witness in article 26 1 number and number 27; Article 65; Article 116 paragraph (3) and subsection (4); Section 184 subsection (1) letter a CODE of CRIMINAL PROCEDURE, no 91 is meant including "people who are able to provide information in the course of investigation, prosecution and the judiciary, a crime that is not always he heard himself, he sees himself and he experienced". As for the plea aside and rest of the uncalled laws; 4. CONCLUSION based on the above assessment of the facts and the law as outlined above, the Court concluded that: [4.1] the Court is authorized to inspect, judge, and break the petition a quo; [2.6] the applicant has legal position (legal standing) to apply for a quo; [4.3] the subject matter of the petition proved according to law for the most part; Based on the Constitution of the Republic of Indonesia in 1945, Act No. 24 of 2003 on the Constitutional Court (State Gazette of the Republic of Indonesia Number 98 in 2003, an additional Sheet of the Republic of Indonesia Number 4316) as amended by law No. 8 year 2011 about the changes to the Act No. 24 of 2003 on the Constitutional Court (State Gazette of the Republic of Indonesia number 70 in 2011, an additional Sheet of the Republic of Indonesia Number 5226) , and Act No. 48 in 2009 about the Power of Justice (State Gazette of the Republic of Indonesia year 2009 Number 157, an additional Sheet of the Republic of Indonesia Number 5076); 5. AMAR'S RULING Judge, stated: in the subject matter of case: Grant application the applicant for most;


92 article 1 States the numbers 26 and 27; Article 65; Article 116 paragraph (3) and subsection (4); as well as of article 184 paragraph (1) letter a Act No. 8 of 1981 on the law of criminal procedure (State Gazette of the Republic of Indonesia Number 76 in 1981 and an additional Sheet of the Republic of Indonesia Number 3209) is contrary to the Constitution of the Republic of Indonesia in 1945 all notions of witness in article 26 1 number and number 27; Article 65; Article 116 paragraph (3) and subsection (4); Section 184 subsection (1) letter a Act No. 8 of 1981 on the law of criminal procedure (State Gazette of the Republic of Indonesia Number 76 in 1981 and an additional Sheet of the Republic of Indonesia Number 3209), not including meant "people who can provide information in the course of investigation, prosecution and the judiciary, a crime that is not always he heard himself, he sees himself and he experienced"; Article 1 States the numbers 26 and 27; Article 65; Article 116 paragraph (3) and subsection (4); as well as of article 184 paragraph (1) letter a Act No. 8 of 1981 on the law of criminal procedure (State Gazette of the Republic of Indonesia Number 76 in 1981 and an additional Sheet of the Republic of Indonesia Number 3209) do not have the force of law binds all notions of witness in article 26 1 number and number 27; Article 65; Article 116 paragraph (3) and subsection (4); Section 184 subsection (1) letter a Act No. 8 of 1981 on the law of criminal procedure (State Gazette of the Republic of Indonesia Number 76 in 1981 and an additional Sheet of the Republic of Indonesia Number 3209), not including meant "people who can provide information in the course of investigation, prosecution and the judiciary, a crime that is not always he heard himself, he sees himself and he experienced"; Order the loading of this ruling in the news of the Republic of Indonesia as it should be; Reject the petition of the applicant in addition to and rest; The case was decided in the meeting of the provisional Judges by nine Judges of the Constitution, namely the Moh. Mahfud MD, as the Chair of the sitting member, Achmad Sodiki, Harjono Fadlil, Ahmad Sumadi, Muhammad Alim, Anwar Hamdan Zoelva Usman, 93, Maria Farida Indrati, and m. N Deputy Mochtar, on Tuesday, the date of the two last August of the year two thousand and eleven and is spoken in the plenary session of the Constitutional Court is open to the public on Monday, the date eight years in August, two thousand eleven by nine Judge Constitution , i.e., the Moh. Mahfud MD, as the Chair of the sitting member, Achmad Sodiki, Harjono Fadlil, Ahmad Sumadi, Muhammad Alim, Usman Anwar, Hamdan Zoelva, Maria Farida Indrati, and m. N Deputy Mochtar, each as a member, accompanied by Mardian Wibowo as Substitute Clerk, and attended by the applicant and the Government or representing, without attended Representatives or representing. Chairman, ttd. MOH. Mahfud Md. Members, ttd. Achmad Sodiki ttd. Harjono ttd. Ahmad Fadlil Sumadi ttd. Muhammad Alim ttd. Usman Anwar ttd. Hamdan Zoelva ttd. Maria Farida Indrati ttd. M. N Deputy Mochtar 94 CLERK replacement, ttd. Mardian Wibowo

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