Key Benefits:
with the Act. Thus, in accordance with
the provisions of Article 24C paragraph (1) of the Constitution of the Republic of the Republic
Indonesia of 1945 (subsequently called UUD 1945) juncto Article 10 of the verse
6
(1) letter d Act Number 24 of 2003 on the Court
Constitution (subsequent 24/2003 Law) juncto Article 12 paragraph (1) letter d
Act No. 4 of 2004 on Justice Power
(subsequently called Act 4/2004) which in its statement states,
" The Constitutional Court is authorized to prosecute at first level and
The final verdict is final, the testing of the Act
against The Basic Law ";
3. That in accordance with the provisions of the law a quo, the Mahkmah of the Constitution
has the authority to examine and prosecute Perpu applications
4/2009 submitted by the applicant;
II. Legal Position (Legal Standing) The Petitioner.
1. That the applicant is an Indonesian citizen who has
a job as an advocate who has a status as law enforcement.
In accordance with Article 5 of the paragraph (1) Act No. 18 of 2003
about the Advocate (next called Act 18/2003) stated, "Advocates
status as law enforcement, babas and self-guaranteed by
laws and laws", so that provided
the law, the applicant As a citizen has an obligation
More laws than citizens other countries in order
maintain Indonesian teg as a legal country not a country
power. Even broadly in the history of the legal states in
all over the world, the Lawyers (advocates) are mentioned as also the Guards
Constitution (the guardian constitucio);
2. That the applicant as an advocate has the same obligations
with other state officials including the President of the Republic
Indonesia before taking up his profession as an advocate, must be first
first to swear holding firm and taking the Pancasila
and the 1945 Constitution;
Based on Article 4 of the first point of Act 18/2003 stated,
" The oath or promise as a nana is referred to the (1) Iaft verse as
following:
7
For God's sake I surnpah/I promise:
-that I will hold firm and take Pancasila as
the country base and the Constitution of the Republic of Indonesia Constitution
Tahun 1945 ";
3. That in accordance with the basic obligations of the applicant who have
vowed and promised to enforce the Act as well as
other legal provisions then the applicant ' s obligation is also for
objections to the issuer of Perpu 4/2009 which according to para
The applicant is not in compliance with the legal certainty and rules of formation of the ordinance
legislation that harms the constitutional right of the applicant;
In accordance with Article 51 of the paragraph (1) the letter a Act 24/2003 mentions,
" The applicant is a party that considers the right and/or authority
The constitutionality is harmed by the enactment of the Act ", i.e.,
individual of the Indonesian citizen";
4. That according to the applicant, in accordance with the submitted controls
in the plea a quo, the applicant has a legal position (legal
standing) to apply for Perpu 4/2009 testing;
III. The Application For The Applicant
Perpu 4/2009 Violates The Procedural Establishment Of The Invite-
Invitation
1. That according to the Applicant Testing of Perpu 4/2009
against Article 28D paragraph (1) of the 1945 Constitution. In Perpu 4/2009, President
The Republic of Indonesia as the party issued the ordinance
stated:
Article 1
" Conditions in the Law Number 30 Year 2002 concerning the Commission
Eradication Of Corruption Crimes (republican Gazette
Indonesia In 2002 Number 137, Additional Republican Gazette
Indonesia Number 4250), amended by adding 2 (two) articles
between Article 33 and Section 34 of Section 33A and Section 33B, which
reads:
Section 33A
8
(1) In terms of the Commission leadership membership vacancy
The Corruption Eradication that led to the Leadership of the Commission
The eradication of Corruption amounts to less than 3 (three) people, the President
lifting members while the leadership of the Eradication Commission
Corruption a number of vacant posts;
(2) The interim leadership of the Corruption Eradication Commission
as it means in paragraph (1) have a task, authority,
obligations, and the same rights as Commission leadership
Corruption Eradication;
(3) The candidate for interim member of the Corruption Eradication Commission
must meet the requirements as referred to in Article 29;
(4) The Rapture and the Leadership stops while Leadership Commission
The Corruption Eradication is set by the President;
(5) In terms of vacancy membership membership of the Eradication Commission
Corruption concerns the Chairman, then the Chairman is elected of and by members
The leadership of the Eradication Commission Corruption;
(6) The Chairman and Vice Chairman of the Corruption Eradication Commission are set
with Presidential Decree;
(7) Before assuming office, Chairman and Vice Chairman of the Commission
Eradication Of Corruption New will be required to pronounce Oath/promise
as referred to in Article 35 ";
Section 33B
"The interim member of the leadership of the Eradication Commission
Corruption as referred to in Section 33A verse (1) ends when:
a. members of the Corruption Eradication Leadership are replaced because
temporarily dismissed as referred to in Article 32 of the paragraph
(2) is reactivated as the temporary stop does not continue
becomes a fixed stop; or
b. swear pronunciation/appointment member of the Corruption Eradication Leader
the new one after being selected through the process as intended in
Article 33 of the paragraph (2 ");
I. Constitution of the Constitutional Court
1. That Statutory Replacement Government Regulation Number 4 Year
2009 on Change of Law Number 30 Year 2002
on the Corruption Eradication Commission (subsequently called Perpu 4/2009)
is the legal provision that since the release has been in effect and binding
all citizens included in it are the Applicants;
According to Article 7 of the paragraph (1) Act No. 10 of 2004 on
The Establishment of the Laws (subsequent called the Act
10/2004) stated " Types and hierarchies of Regulation Legislation
is as follows:
a. The Constitution of the Republic of Indonesia in 1945;
b. Undang-Undang;
c. Government Regulations;
d. Presidential Regulation ";
2. That in accordance with the dalil presented by the applicant a quo,
nt of the Republic of Indonesia stating, "so yes
fucketness of the leadership of the Corruption Eradication Commission";
5. That at the time of Perpu 4/2009 on September 21, 2009,
The head of the KPK became 8 (eight) people of 2 (two) people
with active status, 3 (three) people with non-active status and 3 (three) persons
with Temporary leadership status, so contrary to Article 21
paragraph (1) Act 30/2002 which results in the absence of legal certainty
for citizens;
Due to the absence of legal certainty, it will harm the petitioners
as law enforcement and contrary to the 1945 Constitution, Article 28D
paragraph (1) stated, " Everyone is entitled to a confession, bail,
13
protection, and fair legal certainty as well as the same treatment in
face of law ";
6. That the KPK leadership before being elected by the House was nominated by the President,
after going through a fairly comprehensive selection and very objective. That is
in the responsibility of the President's law which is in charge of
the nomination. That the impact of the Perpu was put out,
that the President has intervenes in the conflicting KPK agencies
with Article 3 of the 30/2002 Act mentioning, " Corruption Eradication Commission
is the State Institution in carrying out tasks and
the authority is independent and free from the influence of power
any " ';
7. That the President has a constitutional obligation to run
The Act as intended in Article 9 of the Constitution of 1945 which
states, " Before taking office, the President and Vice President
swears according to religion, or solemnly promise
before the People's Consultative Assembly or the House of Representatives
as follows:
For God's sake, I swear I will fulfill the President's obligation. Republic
Indonesia (Vice President of the Republic of Indonesia) with It is best and
be fair, holding firm and running
all laws and regulations with all of its were as well as
filial to nusa and nation ";
8. That according to the petitioners and when connected to
Perpu spending by the President clearly and real will incur
legal complications, legal uncertainty, constitutional dictatorship
so it is very contradictory with the mandated nature in
Article 9 of the paragraph (1) of the Constitution of 1945 (1) that states, " Before mine
in office, the President and Vice President swear according to religion, or
promise in earnest in the Meeting of the Consultative Assembly
People or the House of Representatives fulfilling the obligations of the President of the Republic
Indonesia (Vice President of the Republic of Indonesia) with its best and
be fair, holding firm, Basic Law and running
14
all legislation and its rules with all of its are as well as
filial to nusa and nation ";
9. That the President's actions easily issued Perpu
could be a bad precedent and could harm the country, would
potentially easily issue Perpu dissolving the advocate organization,
Perpu press-modeling or Perpu dissolved the Constitutional Court
because the Constitutional Court ' s ruling is different to the President
(executive), so impressed the state is always in a precarious state. That
needs to be remembered for the birth of the KPK due to police failure and prosecutor's failure
eradicated corruption, so it needs special agencies that have
more authority so that corruption could be more easily eradicated, because
root Of all the problems of this nation is corruption. Failure to field
corruption equals state failed;
10. That based on the entire description above has been proven that
Perpu 4/2009 can be categorized as a form of abuse
power (abuse of power) and arbitrariness (arbitrary action),
other than That the Perpu has violated the principle of legal certainty and
undermines the legal system. The perch violates the constitution of Article 22
paragraph (1), Article 28D, Article 9 of the Constitution of 1945. As such, according to the law,
Perpu 4/2009 must be declared invalid and invalid;
11. That the issuer of Perpu 4/2009 harmed the constitutional right of the
applicant, thus contrary to Article 28D of the paragraph (1) of the 1945 Constitution;
That due to Perpu 4/2009 harming the constitutional right of the applicant,
then please the Chairman The Constitutional Court is concerned, examining and
prosecuting this case with a ruling as follows:
1. Grant the Applicant for the whole;
2. State Regulation Replacement Government Ordinance Number 4
Year 2009 on Change of Law Number 30 Tabun 2002
about the Corruption Eradication Commission of Corruption is invalid and not
binding because contrary to Article 22 and Article 28D of UUD 1945;
3. Ordering the Bill to create an Act
about the Gentledness Of The Gentler Matter As Intended
15
in Article 22 of UUD 1945;
4. Ordering the ruling to be contained in the News of the State;
If the Chief Justice of the Constitutional Court argues for another, please the verdict
that it is fair (Ex aequo et bono);
[2.2] weighed that for In support of the control, the applicant
submitted a letter or writing tool that has been assigned to the P-1 to
P-18, as follows:
1. Proof of P-1: Photocopy of the Population Card and the Advocates Card on behalf of
Saour Siagian;
2. Proof P-2: Photocopy Card Population and Pronunciation Mark
While Advocates on behalf of Mangapul Silalahi, SH;
3. Proof P-3: Photocopies Card Population and Card Advocates on behalf of
Daniel Tonapa Mapa, S. H;
4. Proof P-4: Photocopy of the Population Card and the Advocates Card on behalf
Password Ebenezer Situngkir, S. H;
5. Proof P-5: Photocopies Card Population and Card Advocates on behalf of
Carrel Ticualu, SE, S. H;
6. Evidence P-6: Photocopy Card Population and Card Advocates on behalf of
Piterson Tanos, SE, S. H;
7. Evidence P-7: Photocopy of the Population Card and the Advocates Card on behalf of
Samarudin RM, S. H;
8. Evidence P-8: Photocopy Card Population and Card Advocates on behalf of
Vininnocent H. Ranteallo, S. H;
9. Proof P-9: Photocopy of the Population Card and Identifiers
While Advocates on behalf of Judianto Simanjuntak, S. H;
10. Proof P-10: Photocopies Card Population and Card Advocates on behalf of
Yanrino H.H. Sibuea, S. H;
11. Proof P-11: Photocopy of the Population Card and the Advocates Card on behalf of
Broduion Commission;
2. The Advisor team is made up of 4 (four) members; and
3. Employee of the Corruption Eradication Commission as Acting Acting.
4. That on the seat of Perpu 4/2009, the active KPK leadership
consists of 2 (two) people while 3 (three) people are inactive (dismissed
while) as it is undergoing legal proceedings as it is alleged to have been
performing A felony. However, the official status of the KPK Act
30/2002 remains the head of the KPK. So it is not true
consideration of the Preside edure because it will take a considerable amount of time
whereas such urgent circumstances need to be determined to be resolved;
[3.11] Draw that the Court argued the three terms above are
the terms of the force being forced as intended by Article 22
paragraph (1) of the 1945 Constitution;
[3.12] Draw that thus the understanding of the gentledness of the which
forces not to be defined as only a state of danger as
referred to by Article 12 of the Constitution of 1945. It is true that the state of danger
as referred to by Article 12 of the Constitution of 1945 may lead to the process
20
The formation of the Act is regular or normal cannot be implemented,
but the state of danger is not the only circumstance that causes
the onset of the gentledness of force is intended by the Article 22 of the paragraph (1) of the Constitution
1945;
[3.13] draws that Article 22 of the paragraph (1) of the 1945 Constitution states. "In case
ihwal kegentingan, the President is entitled to set the rules
government as a substitute for legislation". From the formulation of the sentence is clear
that the government regulation referred to in the this section is as
replacement of the Act, which means it should be set in
the bill of the Act but due to the force of force, UUD 1945
gives the President the right to assign Perpu and did not provide
the right to the House to make the regulation as An Act.
If regulatory creation is submitted to the House then the House of Representatives proceedings
takes a considerable amount of time due to the House of Representatives as a representative institution,
The decision making is in the hands of the members, which means to decide
something must go through the meetings of the House so that if you have to wait
The decision of the House of Representatives is quickly impossible to fulfill. In
aside, with the name "President entitled" to be impressed that the creation
Perpu became very subjective as it became a right and fully dependent
to the President. The making of Perpu is indeed in the hands of the President which means
depending on the subjective judgment of the President, however it does not mean that
is absolute depending on the President ' s subjective judgment as it is like
has Described above the subjective judgment of the President should be based on
an objective state that is three conditions as a parameter
gentledness is forced. In certain cases where the need for the Invite-
Invite is very urgent to resolve the statehood that
is crucial that the entire nation, the President's right to set
Perpu can even become a mandate to the President to assign Perpu
as an attempt to resolve matters of nation and country;
Perpu gives birth to legal norms and as a new legal norm will be able
raises: (a) a new legal status, (b) new legal relations, and (c) as a result of
21
new laws. The norm of the law was born since Perpu was passed and the fate of the norm
the law depends on the approval of the House to accept or decline
the legal norm of Perpu, but so before the Speaker's opinion to
refuse or approve the Perpu, such legal norm is legal and applicable
like the Act. Because it can incur legal norms that
powers bind it in the same way as the Act then against the norm
contained in the Perpu the Court could test whether it was contradictory
materially with the 1945 Constitution. Thus the Court is authorized to
test the Perpu against the Constitution of 1945 prior to the rejection or approval
by the House, and after the Speaker's approval because the Perpu has become
Undang-Undang;
Legal standing (legal standing) the applicant
[3.14] weighed that under Article 51 of the paragraph (1) MK Act, which could
act as the applicant in testing an Act against the Constitution
1945 is those who are assume the rights and/or its constitutional authority
be harmed by the expiring Testing Act, which is:
a. Individuals in Indonesia (including groups of people who have
same 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;
[3.15] Also that of the Court since the Decree No. 006 /PUU-
III/2005 dated May 31, 2005 and Putermination Number 11 /PUU-V/2007 dated 20
September 2007 and subsequent rulings have been established that
rights and/or constitutional authority disadvantages as referred to Article 51
paragraph (1) The MK bill must meet five terms, that is:
a. the rights and/or constitutional authority of the applicant given by
Constitution of 1945;
22
b. the rights and/or constitutional authority by the applicant is considered
aggrieved by the enactment of the testing Act;
c. the rights and/or constitutional authority should be specific
(special) and actual or at least a potential that according to the reasoning that
is reasonable to be assured will occur;
d. Due (causal verband) connection between the intended loss and
the effect of the Act is being tested;
e. It is possible that with the request of a request, then the loss
rights and/or constitutional authority as postured will not or
no longer occurs;
[3.16] A draw that under Article 51 of the paragraph (1) of the Act MK and the terms-
terms of rights and/or constitutional rights losses as described in
above, subsequently the Court will consider the legal position (legal
standing) para Applicant in the request a quo;
[3.17] Draws That The Court ' s Panyness on the date 11 November
2009 has received an improvement in the request of the petitioners. The request was
refixed (second improvement) with an application dated 16 November
2009 and received in the Court of Justice on 19 November 2009.
Against the restoration of the second plea, the Court argued that
the improvement of the applicant's application dated 16 November 2009 received
in the Court of Justice on 19 November 2009 had passed the deadline 14.
the day as defined in Article 39 of the paragraph (2) of the MK Act. Therefore
the restoration of such a second request should be waive and the Court
will only consider the application of the rededled applicants
and received in the Court of Justice on 11 November 2009;
[3.18] A draw that the Applicant postulate as a personal individual
the Indonesian state of the profession as an advocate (Evidence P-1 to the Eviden the House
or by the President will require a long enough time so that the need
such urgent laws cannot be addressed;
[3.10] Draw that thus the Government Regulation Replacement
The Act is required if:
1. There is an urgent need to resolve the issue
the law is rapidly based on Undang-Undang;
2. The required Act does not exist so that it occurs
a legal void, or there is an Act but is inadequate;
3. Such legal vacancies cannot be resolved by means of the Invite-
Invite to the usual proc s a different reason (concurring opinion) and Constitutional Judge Muhammad
Alim has a different opinion (dissenting opinion):
1. Judge of the Constitution of Moh. Mahfud MD
If dirstrated from original intent, interpretation of historics, grammatical interpretations, and logic
the law should be the Constitutional Court cannot perform judicial testing
(judicial review) on Regulation Government Replacement Legislation (Perpu)
against the Basic Law of 1945. Because according to Article 24C paragraph (1) of the Constitution of 1945
The court only tests the Act against the Basic Law.
The sentence in Article 24C of the paragraph (1) is very clear only to the Invite-
Invite and do not mention Perpu. If the Court is allowed to test
Perpu certainly UUD calls explicitly the acquisition because
formally the Constitution of 1945 differentiates and places differently any mention or
setting between Act and Perpu; The Act is governed in Article 20 whereas
Perpu is set in Section 22.
It is true, from the angle of the contents of a Perpu it regulates the charge material
The Act. This means that the Perpu is actually an Act that
created in a crunch that forces the reasons for the right
the president's subjective. But instead it was made in a precarious state that it was the Constitution
1945 through Article 22 stating that "The Perpu should have the approval
of the House at the next session," which " if the House does not approve
then Perpu it must be revoked or cancelled, "but" if the House approves it
then the Perpu is set to be an Act. " So the Court's authority
to test the Perpu which is indeed material-material only can
be done if it is tested, assessed, discussed, or whatever its name is in the forum
politics in the House and the House approves it to be Act. If the DPR is not
approving then Perpu is revoked but if the House approves then Perpu it
is set to be UdAct and after it becomes UdAct here
28
The new court can conduct its top judicial testing. This is where it is
the balance for the "precarious state"; it means that Perpu contains an Act but
made in a precarious state then the DPR must give an assessment or do
political testing (political review) more In the past, whether to be approved as Invite-
Invite or not. If it is already an Act, it can be tested by
the court.
The academic studies that have developed on the campuses in the
2000-2001 mention, among other things, that Perpu testing by the institution
judicial (judicial review) or by other agencies (as ever given
to MPR by Tap MPR No. III/MPR/2000) is a "usurpation" of rights
and the constitutional authority of the DPR given by the 1945 Constitution. Because already
very clearly, Article 22 of the Constitution of 1945 gives the House the right to judge a
Perpu at the next trial, whether the Perpu will be approved as
Act or not. The similarity of the content level between the Act and
Perpu cannot be used as an excuse for agencies other than the House to test
Perpu's constitutionality against UUD 1945; let alone the similarity of the content is only
because Perpu is defined as "the statute in the material sense," the cause in
the laws of the state of all kinds of laws, ranging from the Constitution
to the Law of the Village, is a law in the sense of the material.
But lately there is Important developments in our state-of-state
so that I may agree to the Perpu can be tested its constitutionality by
The Constitutional Court is mainly through a press point in the interpretation of the constitution. In
the link between the development of the state and the Perpu testing I see
the need for interpretation of the contents of the 1945 Constitution not only rests upon original intent,
interpretation of the historicics, and grammatical interpretation but must be Emphasis on interpretation
sociological and teleological. The development of the state level in the field was
the reason for me to approve it judicial review against Perpu by
The Constitutional Court is the following:
1. There has been debate over the past, whether the assessment to give approval
or not to the Perpu by the House was conducted at the time of the next session exactly
at the time of the trial after the Perpu was issued or at the time of the trial
next in the sense at any time the House has time so much that the discussion can
29
is retenable. In reality, the Perpu was mobled in
the case of a quo was only discussed by the House after going beyond the first trial
since Perpu was issued. As Perpu a quo was promulred on
on September 22, 2009, while the next House of Representatives (DPR
, the 2009 election results) was on 1 October to the 4th
December 2009, but Perpu a quo was not discussed at the time of the first hearing
that. If Perpu cannot be tested by the Court then it is very possible
at one time a Perpu is issued but the DPR does not discuss it with
fast and stalling for a variety of reasons, whereas the Perpu
contains The things that go against the Constitution. Because of this
being reasonable, for the sake of the constitution, Perpu should be able to be tested on its constitutionality
by the Constitutional Court in order to immediately certainty be able or not
continue to be a Perpu.
2. There is also a polemic about the presence of the Perpu being legitimized
its laws because it is not real-real approved and not real-is rejected by
DPR. In this case the House is only asking that the Government immediately submit
a new bill as a replacement for Perpu. The fundamental problem in this case is
how the legal position of a Perpu was not approved but not
was rejected in real terms. Grammatically, if regard to the sound of Article
22 UUD 1945, a Perpu that does not expressly approval from
DPR "should" not be an Act or cannot be
forwarded to its treatment as a Perpu, but politically there is a fact that
developed today that such "semicestian" is still regrettable,
so that a Perpu that is not approved by the DPR (though not rejected in
is real) is still being enforced It is possible to legitimize its legal validity
for being associated with one case. Under this circumstances it becomes reasonable if
The court is authorized to perform testing against Perpu.
3. Related not to the approval of a Perpu by the DPR there is also a question,
up to how long or when a Perpu does not get approval
The House must be replaced by the repeal or Act
ActA replacement. Because there is no limit or point of time then in
Now this experience has a Perpu that doesn't get the DPR approval
27
6. DIFFERENT REASONS AND OPINIONS (CONCURRING OPINION
AND DISSENTING OPINION)
Against The Termination Of This Court Of Justice The Moh Constitution. Mahfud MD
ha ge
should be set in law, or the Perpu charge material that is outside
the President's authority, or clearly contrary to the constitution, for example
The president issued a Perpu that contained or his material froze or
dissolved the House, as opposed to Article 7C of the 1945 Constitution, then
The Constitutional Court of Justice authorized the testing of the Perpu, though
not yet got the approval or rejection of the House in the trial that
next, If the Perpu matter is the dissolution of the House, there is no
the House that approved or rejected the Perpu.
That Perpu Number 4 Year 2009 according to my contents is still in
the President's authority as well as not contradictory with UUD 1945, then I
argue the Constitutional Court is not authorized to prosecute a quo,
by therefore a request for the applicant should be declared not acceptable.
PANITERA REPLACEMENT,
ttd.
SUNARDI
The Constitutional Court through an emphasis on sociological and teleological interpretations.
Suppression of the choice of such interpretation is somewhat ruled out
historical and grammatical interpretation, even out of original intent provisions about
Perpu as set out in Article 22 of the Constitution of 1945. This is necessary
in order to protect the original original intent of articles and other principles
which also exists in the 1945 Constitution. The choice of this view is solely based
on principle in keeping the constitution's constitution " not a single second exists
a potentially illegal constitutional law without being able to
straighten or otherwise. tested through judicial testing. "
Thus I agree with the opinion of the seven other judges that
Perpu can be tested by the Constitutional Court, but special plea a quo
(Testing of Government Regulation of Law Number 4 Year 2009
about Changes to the Law No. 30 Year 2002 about the Commission
The eradication of the Corruption Penal Code) must be declared unacceptable (niet
onvantklijke verklaard) because the plea is blurred (obscuur) and the applicant
have no legal standing (legal standing).
31
2. Constitutional Judge Muhammad Alim
The reason for the injustices of the Constitutional Court is testing Perpu:
1. Article 24C paragraph (1) of the Constitution of 1945, Article 10 paragraph (1) of the letter of the Number
24 Years 2003 on the Constitutional Court, Article 12 of the paragraph (1) letter a
Act No. 4 of 2004 on the Power of Justice only
mentions, "Test the legislation against the UUD."
2. Article 20 of the 1945 Constitution is the authority to form a law, as well
Article 22A about the authority of making Perpu, preexisting,
due to the changing time of Article 20 of the 1945 Constitution was made on the Changes
First (1999) and special paragraph (5) of the Second Amendment (2000); Article 22
The 1945 Constitution does not change, while Article 24C paragraph (1) is performed
Third Amendment (2001), but simply refers, "Test the legislation
against The Basic Law;"
3. At the time of the article 24C paragraph (1) 1945 Constitution, order
The laws of Indonesia according to Tap MPR Number III/MPR/Year 2000
about the Source of Law and the Order of the Invitation are:
-UUD 1945;
-Tap MPR;
-Undang-Undang;
-Perpu, dst.
Nevertheless, the formulation of Article 24C paragraph (1) UUD 1945 only gives
the authority for, " Test the legislation against the Constitution";
The authority of testing the Act (without calling Perpu), against
the Basic Law of 1945 and its Peruification and the Assembly Decree
The Consultative People's Consultative Assembly (" The Law of the People "). Section 5 of the paragraph (1) Tap MPR
No. III/MPR/Year 2000 was the authority of the MPR and was transferred to
the authority of the Constitutional Court under Article 24C paragraph (1) of the 1945 Constitution,
only to test the Act against the Constitution of 1945, excluding
testing Perpu, It doesn't include testing the Tap MPR.
With the granting of the original authority to the MPR then to
The Constitutional Court is only the only test of the Act against the Constitution
32
although that time is Perpu's position under the Act, while the position
Tap MPR above the Act shows it with its rival
that the UUD maker, i.e. MPR indeed only wants the authority
Constitutional Court to test the Act against UUD;
4. Article 24C of the paragraph (1) of the Constitution of 1945 does not mention Perpu, meaning it
submitted to the House of Representatives to approve or disapprove of a Perpu
at the next hearing under the provisions of Article 22 of the paragraph (2) of the 1945 Constitution. After
agreed to be a barulah Act can be tested to the Constitutional Court.
Perpu on the Eradication of Criminal Terrorism issued
following the event known as the 'Bali Bomb' event, tested in
The Constitutional Court after the approval of the House of Representatives Act (Invite-
Invite Number 16 of 2003 on Government Regulation Penetration
Replacement of Law No. 2 Year 2002 on the Enactments
Government Regulation Substitutes Act No. 1 of 2002 on
The Eradication Of Terrorism Crimes, In The Event Of A Bomb Explosion In
Bali On 12 October 2002, Becomes An Act).
5. Current applicable laws of Indonesia in accordance
provisions of Article 7 of the Law Number 10 of the Year 2004 concerning
The Establishment of the Laws, which modulate the Invite-
Invite and Perpu at the level the same (as in TAP MPRS XX/
MPRS/1966) it was formed after the completion of the Fourth Change of the 1945 Constitution
(2002).
6. Lower rules change from the Constitution, for example TAP
MPR Number III of the Year 2000, which sets the laws
which laid down the Perpu at the position under the Act, then Act
10/2004 which inserts the Act on the same level as
Perpu by using a slash (/), cannot change the 1945 Constitution,
that is Article 24C paragraph (1) that only calls the authority of the Court
Constitution for among others testing an Act against the Constitution, without
calling the authority of testing Perpu.
7. Article 1 paragraph (2) of the Constitution of 1945 determines, "Sovereignty is in the hands of the people
and implemented according to the Constitution".
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The authority granted by the sovereign, must be exercised accordingly
with the Constitution, should not deviate from the 1945 Constitution. The Constitutional Authority
The Constitution indicated in Article 24C paragraph (1) of the current 1945 Constitution
tests the Act against the Constitution, if coupled with the test
Perpu, in which I am exercised not according to the Constitution, but rather exercised
deviation from the Constitution;
Based on the above considerations I argued
The Constitutional Court is not authorized to prosecute the a quo plea.
That would be but if the charge of the Perpu matter is not a char
