5

9. That the pornographic video of the artist-like actor has

caused public unrest, and has hurt/hurt anyway

values that live, be nursed and thrive in society-

the value of religion, Religious, cultural, and high morality.

as an Indonesian feature since antiquity and has been created

due to the occurrence of many rape and/or abuse crimes

sexual acts as well as those who have been married to the nation of Indonesia.

A variety of mass media these days;

10. That is based on data from the Indonesian Child Protection Commission (KPAI)

there are 33 cases of rape cases against minors

as affected by pornographic videos of Ariel and the sexual crime rate

increased by 20 percent. post-widespread video of Ariel-Luna-Tari;

11. That by virtue of the Explanation of Section 4 and Explanation of Section 6

Act No. 44 of 2008 on Pornography that

contrary to the contents or body bar of Section 4 and Section 6 it

alone, will bring the potential The disadvantage of the applicant both as an individual citizen of Indonesia as well as a private legal entity, in an effort to realize and maintain a compassionate society's life order, virtuous, upholding

high values. The Almighty God and respect for the harkat and

the dignity of humanity with the creation of a porn video, so the

the applicant has a legal standing to submit this material test;

3. Subject

1. That the things that have been put forth in the Court's authority

The Constitution and the Applicant Law Occupation as described above

are an inseparable part of the subject

this;

2. That the law is present for seekers of justice with the paradigm

that if justice seekers face an issue

the law, then not "the justice seekers are to blame"

but the Law enforcement must do something about

existing laws, including reviewing principles/norms, doctrines, substances

and applicable procedures; 3. That the law is present in the middle-middle society is run not just

according to black-white words from the regulations (according to the letter),

7

the

act " (expression or suggestion of a subject that obscene (not

indecent) or unchaste in literature or deed);

-Prof. Dr. Wirjono Prodjodikoro stated that pornography comes from

from the word "pronos" which means breaking the decency or the obscene and

"graph" which means writing and now includes also images or items

in general it contains or describes something that

offend the susila of the person who reads or sees it;

-Prof. Dr. Andi Hamzah, S.H., describes pornography as derived from the word

porn which means prostitute (Greek "porne") while the graph

(graphein) means expression or expression. It is thus pornographic

means:

a. A disclosure in the form of stories about prostitutes or

prostitution;

b. A revelation in the form of writing or painting about

erotic life with the intention of infliting sex stimuli

to the reading or the one who sees iorderly, nation, and

country of life;

paragraph (2) states, " In exercising their rights and freedom, any

persons are subject to the restrictions set forth with the invite-

invite with intent solely to warrant recognition as well as

respect for the rights and freedoms of others and to meet

a fair charge and in accordance with moral considerations, values

religion, security, and public order in a society

democratic ";

Article 29 paragraph (1) states," The country is based upon the Godhead

Maha Esa ";

5. That the petitioners on June 7, 2010 have reported a follow

criminal pornography to the Polda Metro Jaya with a sign of evidence reporting

TBL/1913/VI/2010/PMJ/Dit.reskrim.Sus related to the video release

porn-like artist Ariel Peterpan, Luna Maya, and Cut Dance which have been

into a national problem highligExplanation of Article 6 in particular

The explanation " the ban has or kept not included for

itself and its own interests contradictory to Article 29 of the paragraph

(1) the 1945 Constitution which reads the state by the top Almighty God

Esa. In a religious state (not a specific religious state) value-

the moral value must be nursed and reflected in any

its citizens are not instead legalizing the act of making pornography with

a reason for the benefit of the Alone or just for yourself. The scene

personal, secret, sacred, why should

be documented? Moreover, if the scene was performed by not a couple

legitimate spouses, would Indonesia subscribe to free sex?

18. That to answer the question, the first step to

done is to delete or state the explanation of Section 4 of the paragraph (1)

referred to by "making" is not included for itself

alone and Own interests. And in the Explanation of Article 6 in particular

The explanation " the ban has or retains not included for

himself and his own interests, contrary to Article 29 of the paragraph

(1) of the 1945 Constitution;

19. That the principle of the regulation of the Pornography Act is Article 29

paragraph (1) of the 1945 Constitution which reads " The state is based upon the Godhead that

Maha Esa ", thus bringing logical consequences in setting

The pornography Act provided that:

1. Uphold the high moral values that are rooted in religious teaching;

2. provides a clear provision of limitations and

a ban that should be adhered to by any citizen as well as

determining the type of sanctions for which to violate it and

3. Protect every citizen, in particular women, children and

the younger generation of bad influences and victims of pornography;

20. That by deleting or stating the Explanation of Section 4 and

The explanation of Article 6 of the Act No. 44 of 2008 on

Pornography is unconstitutional, will create sanctions for the

perpetrators of pornographic videos, so they no longer take refuge behind

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Act product weaknesses by saying themselves only

"victims", when their actions do illicit scenes that

documented has hit live values. and growing up

developed in Indonesia and will reduce the impact of victims

rape or sexual harassment increasingly more days

increasing and more widespread;

21. That is aware of the impact of the video-making of mesum/persenges

performed by suspected perpetrators similar to the artist without

the marriage bond is then documented and widespread in society

wide, whatever The reason for the culprit is obnoted by the legal provisions

In particular the provisions in Section 4 of the paragraph (1) Act

No. 44 of 2008 on Pornography, so the Description of Article 4

"referred to by" making " is not included for himself

himself and his own interests and Explanation of Article 6 The "ban

" has or keeps " not included for itself and

self-interest, must be declared unconstitutional and not

has a binding legal force;

22. That submission is addressed to the norm in the Explanation of Article 4 and the Explanation of Article 6 in particular the phrase "prohibition" has or keeps "not included for itself and of its own interests", Act No. 44 2008 on Pornography As Opposed To Article 28d (1), Article 28J paragraph (1), Article (2) and Article 29 paragraph (1) of the Constitution of 1945;

4. Petitum Based on the above described items, the applicant pleads

if the Assembly of Justice of the Constitutional Court as a guardsman and interpreter

supreme to the Constitution, please check, prosecute, and disconnect

invocation of the applicant with a verdict as follows:

In the Point of Case: 1. Accept and grant the supplicant;

2. Stated Description of Article 4 and Explanation of Article 6 of the Act

No. 44 of 2008 on Pornography (Article Of State RI Year

2008 Number 181, Additional Leaf Country RI Number 4928),

13

contrary to Article 28D paragraph (1), Section 28J paragraph (1), paragraph (2), Section

29 paragraph (1) of the 1945 Constitution;

3. Stated Description of Section 4 and Explanation of Article 6 of the Act

No. 44 Year 2008 on Pornography (Article Of State RI Year

2008 Number 181, Additional State Sheet RI Number 4928), cannot

have legal powers Binding on everything due to its law;

4. Ordering the loading of this verdict in Country News as

should be. Or if the Constitutional Court of Justice Assembly argues

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

[2.2] Draw that to prove its dalises, the applicant has

filed the tool the written proof that was given a Proof of P-1 to the Evidence P-8

passed in front of the trial on 16 September 2010, as

following:

1. Proof P-1: Photocopied Law No. 44 of 2008 on

Pornography;

2. Proof P-2: Photocopy of the Lapor Evidence Mark Number

TBL/1913/VI/2010/PMJ/Dit.Reskrim.Sus;

3. Evidence P-3: Photocopy of Legal Analisa Against Police Report Number

TBL/1913/VI/2010/PMJ/Dit.Reskrimsus, dated 10

June 2010;

4. Evidence P-4: Photocopy Akta Notary Establishment of NGO Hajar Indonesia,

SK. Minister of Law and Human Rights dated 15

July 2005 Number C-152 HT.03.01-Th. 2005;

5. Evidence P-5: Clippings of the Newspaper;

6. Evidence P-6: Photocopied articles from the Internet about Case Data

Rape of Ariel's Porn Video;

7. Evidence P-7: Photocopy of the Indonesian NGO Work Program;

8. Evidence P-8: Photocopying Card Population M. Farhat Abbas, SH.,

MH.;

[2.3] A draw that the Government in the trial dated October 6, 2010

gives the following information as follows:

1) That according to the The applicant the norm is contained in the explanation

Article 4 of the paragraph (1) referred to by making is not included for

14

himself and his own interests and Explanation of Section 6 in particular

the explanation of the ban has or kept not included for himself

himself and his own interests, contrary to the contents of Section 4 of the paragraph (1) and

Section 6 which is the body of his body so that the explanation of Article 4 of the paragraph

(1) and the Explanation of Article 6 are contrary to its own content so that

does not provide any warranties legal certainty as guaranteed in

Article 28D paragraph (1) of the Basic Law of 1945;

2) That according to the Applicant between the contents of the section and the explanation of the section must

have the consistency or clarity of the purpose ofion

Indonesia (KPAI) there are 33 cases of rape cases against

minors who are affected by pornographic videos Ariel and figures

sexual crimes increase by 20 percent. post-widespread video of Ariel-

Luna-Dance.

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17. That the norm is contained in the Explanation of Article 4 of the paragraph (1) which

referred to by "making" is not included for itself

and its own interests. And in the ts were violated and not generating excesses

which is harmful to security, public order as well as not breaking

the norms of decency, and propriety as well as the evolving culture

in society. " But if it is above being notified or

is shown to others through various forms of media, whether or not,

print or electronic, or delivered in the public or public advance

knows it, then the exception as defined in

The explanation of Article 6 of the a quo Act becomes inapplicable;

Based on that explanation above, according to the Government, Explanation

Article 4 of the paragraph (1) and Section 6 of the Act The number 44 in 2008 about

Pornography is aimed at providing protection against society

nor the common protection of human rights in particular protection

against the privacy of one ' s privacy. Therefore, according to the Government,

those provisions above have been appropriate and in line with the UUD ' s 1945 mandate.

Based on the above explanation, the government pleads to Yang

Your Majesty the Chief Justice of the Constitutional Court is examining, severing, and

prosecuting Law Testing No. 44 of 2008 on

18

Pornography against the State Basic Law of the Republic of Indonesia Year

1945 may provide a ruling as follows:

1. Rejecting the applicant 's testing request for the whole or the no-

is not to state that the applicant' s testing application could not be

received;

2. Received overall Government information;

3. Expressed an explanation of Article 4 and Description of Article 6 of the Act

No. 44 of 2008 on Pornography does not conflict with

provisions of Article 28D paragraph (1), Section 28C paragraph (1) and paragraph (2), as well as Article 29

paragraph (1) The Basic Law of the Republic of Indonesia in 1945;

However, if Your Majesty the Chief Justice of the Constitutional Court of Justice

opposits please a wise and adial decision;

[2.4] Draws That to shortening the description in this ruling, all

something that happened in the trial is enough was appointed in the event news

the trial, which is one unbreakable unity with

this verdict.

3. LEGAL CONSIDERATIONS [3.1] weighed that the main issue of the applicant ' s plea

is to test the constitutionality of the Explanation of Article 4 and Explanation of Article 6

Act No. 44 of 2008 on Pornography (Sheet) Country

Republic Of Indonesia 2008 Number 181, Additional Leaf Country

Republic of Indonesia No. 4928, further called the Pornography Act) against

Article 28D paragraph (1), Article 28J paragraph (1), and paragraph (2), as well as Article 29 of the paragraph (1)

The Basic Law of the Republic of Indonesia Year 1945 (next

called UUD 1945);

[3.2] A draw that before considering the subject's subject,

The Constitutional Court (later called the Court) was first going

consider:

a. The Court's authority to examine, prosecute, and disconnect

a request a quo; and

b. legal position (legal standing) the applicant;

19

Against both of these, the Court argued as follows:

The Court's authority

[3.3] weighing that according to Article 24C paragraph (1) of the Constitution of 1945, Article 10 of the paragraph

(1) the letter of a Law No. 24 of 2003 on Constitutional Court

(sheet state of the Republic of Indonesia in 2003 No. 98, additional

sheet of state of the Republic of Indonesia Number 4316, subsequently called Act MK)

juncto Article 29 verse (1) letter a Law Number 48 Year 2009 on

The Power of Justice (Sheet) Republic of Indonesia Year 2009 Number

157, Additional Gazette Republic of Indonesia Number 5076), Court

Authorities prosecute at first and last level that its verdict is

final among others to test The Act against the Constitution of 1945;

[3.4] Draws That The Applicant's plea is to test

the constitutionality The explanation of Article 4 of the paragraph (1) and the Explanation of Article 6 of the Pornography Act against Section 28D paragraph (1), Section 28J verse (1) and paragraph (2), as well

Article 29 paragraph (1) of the Constitution of 1945, by hence the Court Authorized to

check, prosecute, and disconnect the a quo;

Legal Standing (Legal Standing) The applicant

[3.5] A draw that under Article 51 of the paragraph (1) MK Act, which can

applying for an Act testing against the Constitution of 1945 is

those who consider the rights and/or its constitutional authority that

granted by the 1945 Constitution are harmed by the enactment of an Act, namely:

a. Individual citizens of Indonesia (including groups of people

have common interests);

b. the unity of the indigenous law society as long as it is alive and in accordance with

the development of the society and the principle of the Republic of the Republic of Indonesia

which is set in Undang-Undang;

c. the public or private legal entity; or

d. country agencies;

That the Applicant consists of an Indonesian individual (applicant I) and the NGO Hajar Indonesia (applicant II) established pursuant to

Akta Notary Number 1, dated 11 September 2009, which concern against

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various nation concerns include inviting people and governments in

combating pornography and pornoaction in Indonesia;

[3.6] It is also that the Court has since the Determination. The Constitutional Court

No. 006 /PUU-III/2005, dated 31 May 2005 and the Constitutional Court

Constitution Number 11 /PUU-V/2007, dated 20 September 2007, as well as the ruling-

subsequent ruling, the establishment that the loss of rights and/or authority

constitutional as referred to Article 51 paragraph (1) MK Act must be meets

five terms, that is:

a. the rights and/or constitutional authority of the applicant given by

Constitution of 1945;

b. The rights and/or constitutional authority by the applicant are considered

aggrieved by the enactment of the testing Act;

c such constitutional losses must be specific (special) and actual or

At least a potential that according to reasonable reasoning can be confirmed

will occur;

d. (causal verband) link between the intended loss

and the expiring Act (s) of the testing;

e. It is possible that with the application being granted, then

constitutional losses such as the postured will not or no longer occur;

[3.7] Draw that the petitioners on the basis are postulate

have The constitutional right set in the 1945 Constitution, that is:

-Article 28D paragraph (1) states, "Everyone is entitled to the recognition, assurance, protection, and . That according to the Government, Description of Article 6 of Act No. 44

Year 2008 on Pornography, may be interpretation-is appropriate to

the intent of the norm being contained in Section 4 of the paragraph (1) of the Act a quo

that is as follows: " That the ban has or kept it not

including for itself and its own interests. The point is

having or saving for itself and its own interests

is not known to the public or the public is unable to know it so

it is not possible that other people's righas disrespect of the human rights

another that holds firm religious values and cultural customs as

reflecting religious society instead of sex. free;

Norma contained in Description of Section 4 verses (1) and Explanation

Article 6 is contrary to Article 29 of the paragraph (1) of the 1945 Constitution that

states, "The State is based on the Almighty God". In

the state of the religion (not a certain religion) moral values must be

preserved and reflected in the behavior of each of its citizens instead of instead

legalizing the conduct of pornography on the grounds for its own sake

or just for yourself. The husband's personal scene,

secret, sacred, why is it documented? Especially if the scene was

done by not a married couple 's husband' s spouse?

[3.11] Draw, that against the Applicants above, the Court

argues as follows:

[3.11.1] That such is the control of the petitioners themselves, the law is present in the middle-

the center of society, with the intent To crucify society. Since the period

Ancient Rome, already introduced adagium ubi societas ibi ius, which means

where there is a society there is a law. It means the law plays inside.