6

Based on reasonable reasoning inconsistency is fundamental

by prioritizing privatization for Indonesian BUMN without seeing

the actual error was much posed by management and

The government itself, has resulted in constitutional rights and authority

The applicant intends to develop self, sustain life,

distancing itself from ignorance, increasing the tarf of his life, fulfilling

the basic needs in his life and other so forth have been harmed.

Because it has privatised BUMN it is certain that the items

and/or the resulting services are relatively high and difficult for the public

medium to bottom to meet the needs of its life, due to loss

The tax benefits that society pays during this time. Due to the lack of

the benefits are directly perceived to the community like the applicant

the economic level is medium to bottom. It is clearly contradictory

with the 1945 Constitution;

Thus the applicant argues that the applicant has a position

legal (legal standing) as a party in the request of an invite-

invite to the UUD 1945;

III. SUBJECT

Opening (Preambule) Constitution of 1945 affirm, "That truly

independence is the right of all nations and therefore colonialism

above the world must be abolished, as it is not In accordance with humanity

and perijustice ". Independence of the Republic of the Republic of Indonesia

It has long been coveted by the entire Indonesian people, not

with the exception of the founders of the Indonesian nation who is the best and best son of the nation

nation Furthermore, the independence of the founders of the Republic of Indonesia

Indonesia was also not only to gain power, bequeen

the power and happiness of certain groups. But efforts

to form an Indonesian state government that can advance

general welfare, divorce the lives of nations, participate

carry out the world order based on independence, peace

eternal and social justice;

7

Therefore, it is not wrong that the entire Indonesian people expected

that the Indonesians were independent of any form of colonization, such as

economic, political, social, and cultural occupation. In this case it is free of

dependence on certain parties or any particular country. Enterprise

State-owned (BUMN) has a very important meaning in meeting

community life needs in a country;

Therefore, the BUMN can also be interpreted as one of the providers

the employment field which is created by the country to absorb the community

age of work to be able to participate in order to achieve the company's objectives With

the job, it can provide an income for each person to

meet the needs of life for both the person and the family, and can improve

live for the community to live in a continuous way. In accordance with the sound

sila to 5 Pancasila, that is, "Social justice for the entire people of Indonesia";

A. State Company (State-owned Enterprises)

After the enactment of the 1945 Constitution, the Government of the Republic of Indonesia as

A sovereign government and responsible for its people ever

working hard for the welfare of the entire Indonesian people;

In addition, the Government of the Republic of Indonesia has also ever attempted

as a general program of the Government in economics as in

garlined in the political manifesto of the Republic of Indonesia on 17 August 1959

regarding the need for reorganization in tools production and

distribution aimed at the implementation of Article 33 of the 1945 Constitution;

Article 1 of the Law Number 19 of the Prp Year 1960 about Country Enterprise

states that, " In Government Regulation the Act of Replacement

This one referred to the State Company is all companies in

any form that its capital for the whole is the wealth of the State

Republlik Indonesia, unless otherwise specified with or Based on the Invite-

Invite ".

Article 4 of the Law Number 19 of the Prp Year 1960 about the Country Enterprise

states that:

8

(1) State Enterprise is a entity that is:

a. provide services;

b. General expediency;

c. Inform revenue.

(2) The country's corporate goal is to co-build the national economy

in accordance with the economy led by the announcement of the needs of the people and

composure as well as occupations of work within the company, towards society

the fair and prosperous materiil and spiritual.

Article 6 of the Law No. 19 Prp Act 1960 about State Company

stated that:

(1) The country company ' s Modal consists of the wealth of a separated country.

(2) The country company ' s Modal is not divided over the stocks.

(3) All licuid tools are stored in a bank designated by the Government.

Article 6 of the Law Number 19 of the Prp Year 1960 about the Country Enterprise

states that:

(1) Legal mounts, salaries, pensions and socongan as well as earnings-

Another earnings of directors and state corporate workers/workers are set

with government regulations.

(2) The directors lift and dismiss the company employees/workers

state according to the employment regulations approved by the Minister who

is concerned based on the company ' s principal regulation of the company

the state set by the Government.

B. Privatization

Britain was the first country to implement privatization as an instrument

its economic policy. In 1979, British PM Margareth Thatcher

made a major privatization with the idea

neoliberal in the British economy. Neoliberal does mean

slashing the role of government in the economy. A similar thing was done

by U.S. President Ronald Reagen in a near-concurrent priode. From

here is the birth of "Reaganomics" and Tharchersm " to refer to the pattern

the neoliberal policies of both countries;

9

Privatization is not a people's mind fruit (not a nation's original concept

Indonesia). The insistence on privatization in Indonesia in order

increases the country's revenue target coming from International Monetary

Fund (IMF). Hubert Neiss from IMF in his interview to Reuters

Television says, "Privatization is moving ahead but you have to expect

there are some difficulties in implementation. Also the present world economic

environment is not conducive to quick privatization". (Arie Sukanti Hutagalung,

"Economic Yuridist Impact, Privatisation To The Assets Of BUMN Assets

Is Fixed", (Papers Delivered At The BUMN Private Day Seminar,

Challenges, Hope and Reality, Jakarta, 4 July 2002), page 1). This

further proved to the public that privatization is not pure

the thoughts of the best daughters of Indonesia;

It is increasingly convincing the public, that the Government is likely

take action Which is less effective in solving an

serious problem. While the Government's obligation as a holder

powers in a country are to establish viable policies and

benefits for all of its citizens (in this case the citizens

Indonesia) without exception;

More to the Privatization Committee of the Ministry of State of BUMN will privatize

37 BUMN. The privatized BUMN included 34 new BUMN entering

privatisation programs of 2008 and 3 BUMN, whose privatisation was delayed at the

in 2007. The privatization method will be done in 2 ways, i.e. through

prime offering (Initial Public Offering-IPO) in the capital markets and

direct sales to strategic sales investors (strategic sales) appointed by

Government (Indonesian Business, 5/2/2008);

BUMN that will be privatized among others, Medan Industrial Area, Region

Makassar industry, Wijaya Kusuma Industrial Area, BNI Persero, Adhi Karya,

PT. Indonesia Insurance Services, BTN, Jakarta Lloyd, Krakatau Steel, Industry

Sandang, PT. Core, Rukindo, and Ark Adi Useful, Later, PT. Plantation

Nusantara III, PT. Plantations Nusantara IV, PT. Plantations Nusantara VII,

and Sarana Karya, Semen Batu Raya, Waskita Karya, Sucofindo, Surveyor

10

Indonesia, Nusantara Tied Area, Housing Development (through

IPO), Surabaya Industrial Area, and Industrial Engineering. Yodya Works, Chemistry

Farma and Indo Farma (both want mergers), PT. Kraft Aceh, PT. Dirgantara

Industry, Boma Vista, PT. Barata, PT. Inka, Shipping Dock Surabaya, Doc

Shipping Koja Bahari, Biramaya Karya, and Indonesian Ship Industry (Kominfo

Newsroom, 21/1/2008);

From 37 BUMN to be privatized, according to Secretary of State Ministry,

Muhammad Said Didu, Ministry of BUMN ready to release the entire stock

Government at 14 BUMN industrial sector (Business Indonesia Online, 25/1/2008).

And according to BUMN State Minister Sofyan Djalil, the Government will sell 12

BUMN to strategic investors (Business Indonesia, 21/1/2008). While

some of the other BUMN must be sold to foreign countries;

Then after Indonesia signed an agreement with the IMF, then

BUMN sales are increasing. Under the IMF, Indonesia was forced

tightening the budget with the reduction and elimination of subsidies,

raising the price of principal goods and public utilities, the increase

receipt of the tax sector and the sale of assets country by privatizing

BUMN. The new orde-run privatization program resumed

by increasing the number of BUMN sold both in the capital market as well as

to strategic investors. In 1998 the government again sold a 14% stake

PT. Cement Gresik to foreign company Cemex. 1999 Government

selling 9.62% of PT shares. Telkom, 51% shares of PT. Pelindo II to investors

Hongkong, and 49% of PT shares. Pelindo III Australian investors. 2001

The government again sold 9.2% of Chemical Farma shares, 19.8% stake

Indofarma, 30% shares of Sucoufindo, 11.9% of PT shares. Telkom. Between

2002-2006 privatization continued by selling 14 BUMN shares in the way

IPO and strategic sales (www.bumn-ri.com);

But privatization was not as sweet as it was described in the vision

The State Department of BUMN which will improve the role as well as the society

in the ownership of the BUMN shares, as if the wider community were involved in

the ownership of the BUMN. But we know, what it actually means.

11

the community here is the owners of capital or investors. Because it is so not

it is possible that a wide community like most people in Indonesia can

buy a BUMN stock privatized by the Government. Meaning that

benefiting from the privatization of this BUMN is just a small fraction of the society that

has a large capital;

C. The concept of the National Economy and Social Welfare

Article 33 of the paragraph (1) of the 1945 Constitution confirms that, " Economy drafted

as a joint effort based on family principle ". Therefore,

State of the Republic of Indonesia since the beginning of its independence is expressly disadhering to the liberals in the system The economy and the flow.

The agility. However, the State of the Republic of Indonesia is the state

law based on Pancasila and the 1945 Constitution. Therefore, privatization

is not exactly what it feels like to be applied in Indonesia, considering Indonesia is the country

developing a very strong spirit of gotong royong and its family

(or in other words " United we are steadfast, divorced we collapse ");

Article 33 of the paragraph (2) of the 1945 Constitution confirms that,"The production branches

are important for the country and that has mastered the lives of the many people

controlled by the state ". As even the provisions of the constitution place the government as a power holder, major player and control holder

over the production branches that are important to the country and the ruling

hajat lives a lot of people. As a power holder, it is clear

the government is expected to break the deadlock over the issue

unemployment in the Unitary State of the Republic of Indonesia by improving

the management performance of BUMN, to be able to provide work field

to the public as many as to increase the people's life levels

Indonesia;

Therefore, privatization as mandated by Law Number

19 Year 2003 about the Proprietary Entity The country is not an appropriate choice and

a cutting-edge solution for the Indonesian nation. More privatization tends to be

harming the public (or it can also be categorised as impoveristing

society). As a matter of comparison and learning for all of us

12

(in order not to repeat errors in the past) case of privatization

PT. Indonesia Satellite Corporation (Indosat);

Article 33 paragraph (3) UUD 1945 confirms that, " Earth and water and wealth

the nature contained within it is controlled by the state and used

for the great prosperity of the people ". From the provisions of the constitution it puts the government as earth, water and kekayan

nature of Indonesia to be used for greater prosperity

Indonesian people without exception;

Privatization as mandated Law No. 19 of 2003

about the State-Owed Business Agency is not an appropriate choice, but it tends to

detriment to society, at least this may be perceived as a result of implementation

water privatisation in Indonesia (chronological case of Syamsul Hadi et al., Post

Washington Consensus and Political Privatisation in Indonesia (Serpong: Left Marjin,

2007);

That with regard to the definition of "controlled by the state" as

referred to Article 33 of the 1945 Constitution, the Court has stated its stance

as stated in the Decree of the Court Number 001-021-022/PUU-I/

2003, which is spoken in open session to the public on the day Wednesday, 16

December 2004 as follows:

That in finding the understanding and/or intent of a provision

that contained in the Constitution of 1945 is not sufficient if only

hold on to the text of the text of the section concerned and only with

using one particular interpretation method. UUD 1945, as

in which any fundamental or constitutional law, is a system

the basic norm that provides a constitutional basis for the achievement of goals

life of a nation and state as outlined in the Opening

UUD 1945. As a system, the 1945 Constitution is a rule of rules

constituting the constitutional independence of Indonesia,

as affirmed in the opening of the 1945 Constitution, the fourth paragraph,

" Later than it is for forming a Government of the State of Indonesia

which protects the entire nation of Indonesia and the whole spill of blood

13

Indonesia and to advance general welfare, lecture

the life of the nation, and participate in performing world order which is based

independence, eternal peace and social justice, then

-The independence of Indonesia is under the Basic Law

The State of Indonesia, which is formed in a framework of the State of the Republic

Indonesia, which is sovereign of the people, is based on the Godhead

Maha Esa, fair and civilized humanity, the unity of Indonesia and

The wisdom led by wisdom of wisdom in deliberation/

representation, as well as with the realization of a social justice for the whole of the people

Indonesia ". Therefore, any interpretation of a provision in

the provisions of the Constitution of 1945 must always refer to the purpose of the nation's life

and the country as outlined in the Opening of the 1945 Constitution

;

That by view of the 1945 Constitution as a system as

referred to, hence the state's mastery in Article 33 of the Constitution of 1945 has

a higher or wider understanding of possession in the conception

the law The data. The conception of control by the state is a legal conception

the public relating to the principle of the sovereignty of the people embraced in

The 1945 Constitution, both in politics and economics. In the understanding of sovereignty

the people, the people are recognized as the source, owner, and at once

the highest holder of power in a country's life, in accordance with

the doctrine "of the people, by the people, and for the people". In the sense of power

the highest was covered by the public's sense of possession by the people.

the collective. That the earth and water and its natural wealth are contained within

the state of the law of the state of its nature is the public property of the whole people.

the collective is mandated to the state to master it in order

used for the A great deal of mutual prosperity. Therefore, Article

33 verses (3) determine, "the earth and water and the natural wealth contained

in it are controlled by the state and used for a great deal

the prosperity of the people";

That if understanding is " controlled by country " only defined as possession

in the sense of the data, then the intended is not sufficient in

14

uses that possession to achieve the goal of "magnitude

the prosperity of the people", which thus means the mandate to "advance

general welfare" and " embody a justice social for all

the people of Indonesia " in the Opening of the Constitution of 1945 cannot be realized. Nevertheless, the conception of the ownership of the data itself must be recognized as

one of the logical consequences of mastery by the state which includes also

the understanding of public ownership by the people's collectives over the sources

The wealth in question. The definition of "controlled by the state" is also not able

is defined only as a right to govern, because it is so

already by itself attached to the functions of the country without having to

specifically referred to in the Basic law. In case of Article 33

not listed in the 1945 Constitution, as usual in many countries

adhering to the liberal economy that does not regulate the basic norms

the economy in its constitution, itself is by itself. state authorized

perform the settings function. Because of this, the notion of "controlled by a state"

is unlikely to be reduced to only the authority of the state to set

the economy. Thus, both the view that defines

control by the state is identical to the possession in the conception of the data

and the view that interprets the country's understanding of the sense of control

only the authority of the arrangement by the state, both rejected by

The court;

That based on the description, the definition of "controlled by the state" must be defined

encompassed the meaning of mastery by the state in the broadwide source and

derived from conception the sovereignty of the people of Indonesia over any source

wealth " earth, water and the wealth of nature contained therein ",

also included in it the sense of public ownership by the people's collectives

upon the sources of the wealth in question. The people of that collectively

are conceptuciated by the 1945 Constitution giving the mandate to the state for

conduct a policy (beleid) and the action of the affairs (bestuursdaad),

setting (regelendaad), managing (beheersdaad), and supervision

(toezichthoudensdaad) for the purpose of the great prosperity of the people.

The function of the affairs (bestuursdaad) by the state is done by the Government

15

with its authority to eject and revoke the perijinan facility

(vergunning), license (licentie), and concession (consessie). Set-up functions by

country (regelendaad) performed through the authority of the legislation by the DPR

with the government, and regulation by the Government. The management function

(beheersdaad) is carried out through the stock holding mechanism (share-holding)

and/or through direct involvement in the management of the Proprietary Entity

Country or State-Owed Law Agency as a Institutional instruments, which

through the State c.q. Government, underlying their reinstatement

sources of that wealth to be used for the enormity

the prosperity of the people. Similarly, the state's surveillance function

(toezichthoudensdaad) is done by the State c.q. Government, in order

supervising and controlling for the exercise of control by the upper state

wealth sources meant to be really done for the size-

magnitude of the prosperity of the whole people;

That in such a framework, mastery in the sense

of civil ownership (private) sourced conception of public ownership

with regard to the production branches that are important to the country and which

master of the hajat lives a lot of people according to the provisions of Article 33 of the paragraph (2)

controlled by the State, depending on the dynamics of the development of the conditions

the wealth of each branch of production. The one to be ruled by the State

is if (i) the branches of production are important for the country and control

hajat lives a lot; or (ii) important for the country but not master

hajat lives a lot; or (iii) is not important for the country but control

hajat lives a lot of people. All three must be ruled by the State and used

for the greater prosperity of the people. However, it was returned to

Government with the people's representative agencies to assess what and when

a production branch was judged to be important for the country and/or mastering the hajat

the lives of the many. The production branch that was at an important time for

states and mastered the lives of many people, at any other time may

change to be unimportant to the country and/or no longer master hajat

life of the many;

16

Draw that on the basis of such a thought framework, almost all

BUMN in Indonesia is included in the production branch and holds the power

which devolve the State to the BUMN to manage natural wealth that

contained within the Indonesian earth as referred to by Article 33 of the paragraph

(2) and paragraph (3) of the 1945 Constitution, therefore the Government and the House judge that

it is important for the country and/or master hajat lives people

many, then of course the BUMN can't be privatized

as mandated in Law Number 19 of 2003

on the State-owned Enterprises;

The concept of advancing social welfare for the entire Indonesian people is

the choice of the founders of the nation to be realized by all citizens

Indonesia. This is reflected in the 1945 Constitution Article 33 of the paragraph (2) and verse (3) which

states that, "The production branches are important to the country and

which controls the lives of the many people controlled by the state". Next

paragraph (3) reads, "Earth and water and natural wealth contained

in it is controlled by the state and used for its magnitude

the prosperity of the people". But in reality, Indonesia's natural wealth

that is abundant, is not proportional to the number of human resources

that is intelligent to realize these ideals. BUMN expected

was able to fight for the interests of the people, as if a decline

due to corporate management errors and the weak government controls

would be that;

In addition to conflict with the 1945 Constitution, It turns out that the privatization policy that

was chosen by the Government did not run smoothly and was inclined to incur

a disadvantage. At least this has been revealed by Alan N.

Miler, among them:

1. the high price of public goods that the community must bear;

2. reduced job field available (in the sense of privatization

undermines existing job field and does not open

new job opportunities);

17

3. The absence of the main rules governing privatization, thus privatization more

is aimed at increasing market gain from on social services;

4. Loss of public control over the assets of the country;

5. Privatization tends to stimulate and invite new forms of corruption

in the governance of the country ' s assets;

6. The economic sovereignty of the State of Indonesia is neglected as a result of the expulsion

BUMN strategic by a foreign party;

7. Rising poverty rates due to the narrow field of employment that

is available as well as the high unemployment rate.

D. Category Offense

1. The material norm that is tested in the Act Number 19 of 2003 on the State-owned Enterprises

Article 1 of 11 and 12 as well as the Chapter VIII Restructuring and Privatization provisions

Act No. 19 of 2003 concerning the Agency The State-owned attempt

which is considered to be in conflict with the 1945 Constitution, is:

a. Article 1 of 1 figure 11 of the Law No. 19 of 2003 on the Agency

State-owned Enterprises which reads, "The restructuring is an attempt that

is done in the framework of the BUMN vision which is one

step strategic to improve the company's internal conditions for

refine performance and improve the company's value ";

In this case Act No. 19 of 2003 is as if

describe to the community that BUMN is in no state

healthy. It is therefore necessary to restructure in order of the vision

BUMN. However, in reality the definition was not understood

how many BUMN are not healthy, whether in whole or in part.

There will be a definition of restructuring in the Act No. 19 of 2003

this, it is impressive that the entire BUMN is not healthy;

Next restructuring also " ...is one step to

refine the company's internal conditions to improve performance and

increases company value " clearly that Invite Invite Number 19

Year 2003 also again did not outline any strategic move any more than

18

of the restructuring, or in other words restructuring it is one among

of the various strategic steps there is. So the question is how much

its strategic step and why not be inducted into the Act

Number 19 of 2003. Invite Invite Number 19 of 2003 also

does not clearly describe what activities will be done and/or

selected to improve the internal condition of the company so that

enabled the performance of the performance the good and the company's value increase.

In addition to the legal language used is also unclear and difficult to

understand, so it is feared to create a wide variety of interpretations

in its implementation;

While it is already the establishment of laws to be

has a clear goal that is to be achieved by the language of the law that

is clear and easy to understand not to create a wide variety of

interpretations in its implementation.

Section 72

(1) The restructuring is done with mean to healthy BUMN so

can operate efficiently, transparently, and professionally.

In this section it clearly Act No. 19 of 2003 gives an impression

as if describing it to the community that BUMN in

circumstances are not healthy. Therefore, it is necessary to restructure with the intent

for the BUMN vision. Further Article 72 paragraph (1) also confirms that

BUMN has not been able to operate efficiently, transparently and professionally, by

hence it is indispensed with restructuring. The content of this section is obvious

is very irrelevant and prefabricated, it is visible from the words

"...in order to operate efficiently, transparently and professionally."

The question is unlikely that Indonesia ' s BUMN could be a big

as of now without any efficiency and power/professional attitude of

management and employees of the BUMN itself. Therefore, the provisions in

this section are too far-fetted and exaggerated, no longer exists

one person in the world could ensure that with a restructuring

against BUMN, then the BUMN could be It's guaranteed to operate efficiently,

19

transparent and professional. Thus it is not natural to be a provision

it was in Law No. 19 of 2003, given that

those laws should have the clarity of formulae to

not incur any kind of interpretation in its application.

(2) The purpose of the restructuring is for:

a. enhance the company ' s performance and value;

b. provide both dividends and tax benefits to the country;

c. produces products and services at a competitive price to

consumers; and

d. Facilitate the execution of privatization.

(3) The implementation of the restructuring as referred to in paragraph (1) remains

pay attention to the cost and benefit acquired.

In this section it is clear Act No. 19 2003 tried

reassuring to the public or the entire Indonesian citizen

that the restructuring of the BUMN was very favorable to the community and

the state, as it sounds, " provides the benefit of the Dividend

and taxes to the State ". What is very surprising is the Act

No. 19 of 2003 did not explicitly mention a restructuring such as

what is to be an option or that will be applied to the BUMN, so

can be ascerably restructuring it could improve performance and value

the company. In addition, the applicant also assumes that the benefits

perceived by the state are also very small in the presence of a restructuring that

is not yet clear that the concept (or a restructuring that has been applied

during this time), if compared when the country gains its revenue from

BUMN as the majority shareholder or capital owner of BUMN. So

at its core the content of this section is simply an impression of being a sweetener in the Invite-

Invite Number 19 of the Year of 2003. As the primary goal is

to facilitate the privatization or denationalisation of Indonesian BUMN such as

the sound of Article 72 verses (2) of the d. Thus the BUMN after being restructured could

generate goods and services at a competitive price to consumers

not affordable for all Indonesian citizens. It's clearly reducing

20

the role of BUMN as the necessary goods and/or services in

order to realize the enormity of the prosperity of the Indonesian people, if

the price is not affordable by the public, In particular society

with the middle economic level down.

Article 73 The restructuring includes:

a. sectoral restructuring whose implementation is adjusted to the policy

sector and/or the provisions of the laws of law;

b. corporate/corporate restructuring that includes:

1) increased intensity of venture competition, especially in the sectors that

there is a monopoly, both in regulation and natural monopoly;

2) the alignment functional relationships between the government as regulators and

BUMN as an enterprise entity, including the application of the principle-

principles of corporate governance are good and set the course in

frame the execution of public service obligations.

3) the restructuring internal that includes finances, organizations/management,

operations, systems, and procedures.

The explanation of Section 73 Act Number 19 of 2003 stated

that, "The sectoral restructuring is primarily intended To the sectors that

gets protected in the past or there is a natural monopoly. Restructuring

sectoral is intended to create a healthy business climate, so

there is a healthy competition, efficiency, and optimal service ... " Then

that being the question is whether after a restructuring

that is, then the sectors of which there is a monopoly are already

free of a monopoly or simply a hand transfer;

In this case the applicant will try to decipher his views on

the provisions of the restructuring that are in the Act Number 19 of the Year

2003 on the State-owned Enterprises, it was taken so that there would not be much

a repeat of the same words;

The concept of restructuring that existed in Act No. 19 of 2003

is very not clear and tend to pose a wide variety of interpretations

21

in its application. The impression described by Act Number

19 of 2003 was to the public, that the BUMN was in no state

healthy. It is therefore necessary to restructure in order of the vision

BUMN. However, the definition of the restructuring itself cannot provide

the limitation of how much BUMN is unwell, whether it is entirely or

in part. So this could potentially cause a variety of problems

in its application, due to the concept of restructuring that was intruding in

this legislation is undercooked or lack of clarity of purpose;

More charge material in Law No. 19 of 2003 on

The State-owned Business Agency, in particular that set about restructuring

against BUMN is extremely blurred and the absence of clarity of purpose as well as

the clarity of rumusan, so that It is feared that it will impact the performance

BUMN itself. For example if a restructuring is conducted against

one of the BUMN is an internal restructuring that includes finances and

BUMN's management/management as mandated in the Invite-

Invite Number 19 Year 2003, then under the pretext of carrying out

the provisions in such legislation thousands of employees of the BUMN were laid off or

at home, when this clearly violates the fundamental rights that have been

mandated by the 1945 Constitution and regulations Other laws.

Then the question is, is it such behavior or phenomenon

in accordance with Act Number 19 of 2003, its answer is appropriate,

because the legislation does not expressly provide a constraint

restructuring as to what it can do;

From the description above, give us a very clear description

all, the applicant who assumed that the Act

No. 19 of 2003 on the State-owned Business Agency in particular Article 1

number 11, Section 72 of the paragraph (1), paragraph (2), and paragraph (3) as well as Section 73, has

removed the meaning Fair legal certainty for the people of Indonesia,

especially for the lower middle class (BUMN employees). While the Article

28D paragraph (2) states that, "Everyone has the right to work and

gets the fair and fair treatment and is worth the relationship

22

work". Its impact on the applicant and the entire Indonesian people in general

is the loss of opportunity to obtain the goods or services that

generated by the BUMN at an affordable price. While the role of BUMN

as a producer of goods and/or services is indispensed by the applicant and

the entire Indonesian people in order to fulfill its life needs

embodied the great prosperity of all the people. Indonesia;

Suad Husnan in the second book of Management Theory and Implementation

(Short-Term Decision) (1998), stated that the restructuring

represents an activity to change the structure of the company. In other words

restructuring can mean enlarging or scaling the structure

the company. In connection with the restructuring, J. Fred Weston and Thomas

E. Capeland (Managerial Finance, 1991) called the four forms, which were

expansion, sell off, corporate control, and the change of ownership. Expansion can

be taken through a variety of ways, including mergers and acquisitions, tender offers

and joint ventures;

If viewed from legal aspects, then the company restructuring can only be

in place of the The entity with the status of the legal entity (in this case

Limited liability). Due to corporate restructuring in the manner

mergers/mergers, consolidasi/smelting and acquisitions (takeovers)

can only be implemented on the Limited Perseroan, without affecting

existence of the status of the company concerned as an institution;

Some other forms of restructuring are consolidation,

dissolution of the effort (liquidation), recruitment (kepailitan), business dismissal

(split off), the exchange of efforts (spin off), revaluation of fixed assets (revaluations),

recapitalization and reorganization of the effort.

In the meantime, to reduce negative equity (negative equity) due to the load

the debt is done some action e.g. rescheduled repayment

debt (rescheduling), debt reduction (hair cut), debt exemption (debt

remision), conversion of debt to equity (debt-equity swap), and foreclosure

debt warranty items;

23

According to Prof. DR. Sri Redjeki Hartono, SH corporate restructuring can

be executed in positive situations or in negative situations, i.e. in

the company development framework or in order to resolve difficulties

the company. Therefore it can be said that corporate restructuring

is one of the most important and necessary actions in the world

effort, in order to the economic life system and the enterprise world

that is healthy;

Some legal provisions are available, fundamentally a goal

and a specific objective, i.e., to keep the balance of balance

interest in the community. As the legal philosophy values in

generally and there is a recognized law (in this case norma/value

which is written in writing) always has the purpose of protecting the party

third. Third party (anyone) should not be harmed by the legal action

of a particular party or other parties (in this case doing

the conduct of the law towards the restructuring of the company).

The applicant assumes that the provisions of the restructuring in the Act

No. 19 of 2003 have not been able to accommodate a range of interests

the public, so that the provisions of such restructuring tend to be

raises losses for the applicant in particular and the public at

generally the loss of opportunity acquiring goods and/or services

generated by the BUMN at an affordable price. This is clear

in violation of the applicant ' s constitutional rights as set in

The Basic Law of 1945, among them:

1. Article 27 paragraph (1) "All citizens simultaneously in law and

governments and shall uphold the law and governance with

there is no exception";

2. Section 27 paragraph (2) "All citizens are entitled to a job and a decent livelihood

for humanity";

24

3. Article 28A "Everyone has the right to live as well as the right to maintain life and

her life";

4. Section 28C paragraph (2) "Everyone is entitled to advance itself in the fight for its right

collectively to build a society, nation and country";

5. Section 28I paragraph (2) "Everyone is entitled to be free from the discriminatory treatment of

any basis and deserve protection against the treatment

that discriminates is";

6. Article 33 of the paragraph (2) "The production branches are important to the state and the ruling

hajathidup people are widely held by the state";

7. Article 33 paragraph (3) "The Earth and the water and the natural wealth contained therein are controlled by

the state and used for the great prosperity of the people";

b. Article 1 number 12 of the Law No. 19 of 2003 on Agency

State-owned Enterprises which reads, " Privatization is the sale of shares

Persero, both partially and entirely, to other parties in order

increase the company's performance and value, enlarge the benefits to

country and society, as well as expand ownership of shares by

society;

In this case Act No. 19 of 2003 as if giving

the opportunities to the public that the BUMN can be owned by the community

by the way conduct a share purchase of a company stake in the existing BUMN

privatization. However, from the definition of Act No. 19

In 2003 it also tended to deflede its own direction, from

expanding ownership of shares by the public to be neglected because

there were sales words. The persero stock, in part or in the whole

25

to the other party. The other side may contain the public meaning

and/or foreign/foreign investors and others as it is;

On the other hand, Act No. 19 of the Year 2003 was also impressed

using the sweeteners ' words ("gombal") , for example privatization can

enlarge benefits for the state and society, as well as expand

ownership of shares by the public, whereas we know it can be certain

that privatization is only can benefit from a large income

only once or a few times (depending on the

or whole of the persero stock being sold) but that it certainly delets

the government's acquisition of the profit or deviden obtained by BUMN as

a BUMN liability form for Lease it to the Government as

shareholders or capital owners of the BUMN. If possible, then

it is more profitable where to manage and be the owner of a vehicle, ship

or the company itself, or sell it to someone else. The answer

is for sure to be more profitable to manage and have it alone. In addition,

prior to the privatization provision in Act No. 19 of the Year

2003 then the collective ownership of the public over the BUMN could be felt

the benefit of the applicant ' s life needs and the whole of the people

Indonesia at the price of goods and/or services generated by BUMN relative

affordability. But after the privatization provision was rolled out by

the government passed the Act No. 19 of 2003, instead

otherwise it did;

It was already the establishment of laws. created

because it is indeed absolutely necessary and beneficial in setting

community life, nation and country, not instead;

Article 74

(1) Privatisation is done with intent for:

a. expand the community ownership of Persero;

b. enhance the company ' s efficiency and productivity;

c. creates good financial structure and financial management/

strong;

26

d. creating a healthy and competitive industrial structure;

e. creating a global saing and global-oriented persero;

f. grow the business climate, macro economy, and market capacity.

(2) Privatization is done with the goal of improving performance and value

add the company and improve the role as well as the inner community

ownership of the persero stock.

In this case Act No. 19 of 2003 as if giving

an impression to the public that the privatization of BUMN could expand

the community ownership of the persero, despite the concept of privatization in definition

Act No. 19 of 2003 was also impartial communities and

are very obscure. The No. 19 Act of 2003 was also

re-assured the public that privatization could improve

the company's efficiency and productivity, but which is what it is

is how it is the price of goods and/or services generated, with

is still reachable by the lower middle economic group society

such as the applicant. Then Act No. 19 of 2003 was also gleefully

arrogant or imposing the expiring privatization or denationalisation of BUMN

Indonesia, this is reflected by the following words, that privatization

can create a good/strong financial structure and financial management.

Then when towards the end of 2008 this Indonesiian was affected by

the global crisis, whether such a statement could preserve the truth

the concept and its arrogance? More than Law Number

19 of 2003 also stated that privatization can create a structure

healthy industry and competitor; creating a saing-powered Persero and

global oriented; and grow the business climate, macroeconomics, and

Market capacity. Then what the question is whether the provisions

can be accounted for the truth or just as

a mere sweetener word To create a positive understanding.

for doing so. privatisation in Indonesia with the exclusion of

the negative impact posed by privatissi itself. While according to

The negative impact applicant posed by privatization it is not comparable

with the benefits felt by the public and the State;

27

Article 75

Privatisation is done with regard to the principles of transparency,

independence, accountability, accountability, and fairness.

Article 76 (1) The privatized Persero should at least meet

criteria:

a. The industrial/industrial business is competitive; or

b. The industrial/business sectors whose technological elements are rapidly changing.

(2) Some of the assets or activities of the persero carry out the obligations

general services and/or the following activities legislation

efforts must be done by BUMN, it can be separated to be used

inclusion in the company's establishment for next if necessary

can be privatized.

In this case Act No. 19 of 2003 as if giving

the impression to the public that privatization BUMN is done with

paying attention to the principles of transparency, independence, accountability,

accountability, and the kewajeness. While normally for a transaction

sales are reasonable if those principles are implemented, but

the problem is privatization is problematic or

contrary to Article 33 verse (2) and paragraph (3) of the 1945 Constitution;

In addition to the Law Number 19 of 2003 also isyrise that

the privatized persero must at least meet the criteria,