UNOFFICIAL ENGLISH TRANSLATION FROM BAHASA INDONESIA RULING NUMBER 19/PUU-VIII/2010 FOR THE SAKE OF JUSTICE UNDER GOD ALMIGHTY CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA [1.1] adjudicate constitutional cases at the first and last, passed a decision in the case of Law Number 36 Year 2009 on the Health of the Constitution of the Republic Indonesia Year 1945, filed by: [1.2] Name Place, Date of Birth : : Drs. H. M. Bambang Sukarno; Magelang, February 18, 1954; Occupation: Private; Address: Jalan Sudirman No. 128 Waterford, Central Java Province; Hereinafter referred to as ------------------------------------------------ -------------------- Petitioner; [1.3] Reading the petition of the Petitioners; Heard the testimony of the applicant; Hearing and reading the statements of the Government; Read a written statement of the House of Representatives; Heard and read the Related Party National Committee Child Protection, Indonesian Heart Foundation, Cancer Foundation of Indonesia, Indonesian Consumers Foundation, the Association of Public Health Indonesia, Jakarta Residents Forum Society, and dr. drh. Mangku Sitepoe; Heard and read the ad informandum Related Parties Judge Sorimuda Pohan, PT. Djarum, PT. HM Sampoerna, PT. Gudang Garam, and the Joint United Cigarette Manufacturing Indonesia; Heard the testimony of experts and witnesses of the Petitioners; Heard the testimony of expert witnesses and the Government; Heard the testimony of witnesses from Related Party National Committee Child Protection; 2 Checking the written evidence submitted by the Applicant and Parties Related to the National Commission for Child Protection, Indonesian Heart Foundation, the Foundation Cancer Indonesia, the Indonesian Consumers Foundation, and Joint United Cigarette Manufacturing Indonesia; Reading the written conclusions of the applicant, Government, and Party Related to the Indonesian Consumers Foundation, the National Commission for Protection Child, and the city of Jakarta Residents Forum; 2. CASE SITTING [2.1] Considering whereas the Petitioner filed a petition with petition letter dated March 17, 2010, received at the Registrar's Office UNOFFICIAL ENGLISH TRANSLATION FROM BAHASA INDONESIA Constitutional Court (hereinafter referred to as the Court) in dated March 22, 2010 by the Deed of Acceptance of Application File Number 40/PAN.MK/2010 and registered on March 29, 2010 with No. 19/PUU-VIII/2010, which has been repaired and received at the Court on April 28, 2010 that the following main points: I. The authority of the Constitutional Court 1. Petitioners request that the Constitutional Court (MK) conducted tests Article 113 paragraph (1), paragraph (2), and paragraph (3) of Law Number 36 Year 2009 on the Health of the Constitution of the Republic Indonesia Year 1945 (vide evidence of P-2); 2. As set forth in Article 24 of the 1945 Constitution Third Amendment states: 1) The judicial power is the power of freedom to judicial conduct in order to enforce law and justice ***); 2) The judicial power shall be done by a Supreme Court and judicial bodies underneath it in the courts public, religious courts, military courts, administrative courts and the state by a Supreme Constitution ***); 3) other agencies whose functions relate to the power of judicial stipulated in the law ****); 3 3. As set forth in Article 24C Paragraph (1) Changes in the 1945 Third states: "The Constitutional Court the authority to hear at the first and last the decision is final to test legislation against Constitution, the state agency the authority to decide disputes the authority granted by the Constitution, to decide dissolution of political parties and decide disputes concerning the election results "; 4. As stipulated in Law Number 48 Year 2009 on Judicial Power in the third section of Article 29 of the Constitutional Court (See the proof of P-3) states: 1) The Constitutional Court the authority to hear at the first and The last decision is final for: a. test the laws against the Constitution of the State Republic of Indonesia Year 1945; b. State agency the authority to decide disputes which authority granted by the Constitution of the State Republic of Indonesia Year 1945; c. decide upon the dissolution of political parties; d. decide disputes concerning election results; and e. other powers granted by law. 2) In addition to the authority referred to in paragraph (1), the Court The Constitution shall give a decision on the opinion of the House of Representatives The people that the President and / or Vice President is alleged to have done UNOFFICIAL ENGLISH TRANSLATION FROM BAHASA INDONESIA violation of law in the form of treason against the state, corruption, bribery, other felonies or moral turpitude, and / or no longer qualify as President and / or Vice President. 3) The composition, powers and procedural law of the Constitutional Court as referred to in paragraph (1) shall be regulated by the Act. 4) Organization, administration, and finance at the Constitutional Court Under the power and authority of the Constitutional Court. 5. Whereas, pursuant to the provisions above, the Constitutional Court have the right or authority to perform the testing undang4 laws against the Constitution which is also based on Article 10 paragraph (1) of Law Number 24 Year 2003 concerning Constitutional Court (See the proof of P-4) which states: "The Constitutional Court the authority to hear at the first and last the decision is final for: (a) test the laws against 1945 Constitution ". 6. That the authority to test laws against the 1945 Constitution was based in Article 51 of Law Number 24 Year 2003 concerning the The Constitution states: 1) Petitioner is a party that considers the rights and / or authority impaired by the enactment of constitutional law, namely: a. individual Indonesian citizen; b. customary law community unit along still alive and in accordance with the development of society and the principle of a unitary state Republic of Indonesia as regulated in the Act; c. public or private legal entities; or d. state institutions. 2) Applicant shall describe clearly in his petition on rights and / or authorities referred to in paragraph (1); 3) In the application referred to in paragraph (2), the Applicant shall clearly outlines that: a. establishment of the Act do not comply based on the 1945 and / or; b. substance of the paragraph, chapter, and / or the Act considered contrary to the 1945 Constitution; 7. Article 5 of Law Number 10 Year 2004 on the Establishment Legislation (see the proof of P-5). In establishing the rules Legislation should be based on the principle of Establishment Good legislation that includes: a. clarity of purpose; b. institutional or organ forming the right; 5 c. meteri fit between the type and the load; d. can be implemented; UNOFFICIAL ENGLISH TRANSLATION FROM BAHASA INDONESIA e. versatility and kehasilgunaan; f. formulation and clarity; g. openness. 8. Article 6 of Law Number 10 Year 2004 on the Establishment Legislation, paragraph (1), "the substance of the rules legislation contains principles: a. aegis; b. humanity; c. nationality; d. kinship; e. Unity in Diversity; f. justice; g. equality in law and government; h. balance, harmony and alignment. 9. Article 7 of Law Number 10 Year 2004 on the Establishment Legislation stipulates that the hierarchical position Higher than the 1945 Act, therefore every provision Act must not conflict with the Constitution Republic of Indonesia Year 1945, then such provision may petitioned for review through the testing mechanism Act. 10. Whereas under the provisions of the above laws, the Constitutional Court authority to examine, hear and decide the application of test materially. II. The Status Law (Legal Standing) and Constitutional Interests Applicant 11. Whereas recognition of the rights of every citizen of Indonesia to propose petition for judicial review of Law against the 1945 Constitution is one indicator of the positive development of the state administration reflects the lack of progress for strengthening the principles of state law. 6 12. See the statement that the Constitutional Court of Indonesia, Among other functions as the "guardian" of "constitutional rights" of each citizens of the Republic of Indonesia. The Constitutional Court is the body maintain judicial human rights as constitutional rights and rights law of every citizen. With this awareness Applicant then decided to apply the material of Article 113 paragraph (1), paragraph (2), and paragraph (3) of Law Number 36 Year 2009 on Health contrary to the spirit and soul of the Preamble (Preambule) and clauses contained in the 1945 Constitution; 13. Whereas Article 51 of Law Number 24 Year 2003 concerning the The Constitution states: 1) Petitioner is a party that considers the rights and / or authority impaired by the enactment of constitutional law, namely: a. individual Indonesian citizen; UNOFFICIAL ENGLISH TRANSLATION FROM BAHASA INDONESIA b. customary law community unit along still alive and in accordance with the development of society and the principle of a unitary state Republic of Indonesia as regulated in the Act; c. public or private legal entities; or d. state institutions. 2) Applicant shall describe clearly in his petition on rights and / or authorities referred to in paragraph (1). 3) In the application referred to in paragraph (2), the Applicant shall clearly outlines that: a. Establishment of the Act does not comply with the provisions under The 1945 Constitution; and / or; b. substance of the paragraph, chapter, and / or the law considered contrary to the 1945 Constitution; 14. Whereas Article 57 of Law Number 24 Year 2003 concerning the The Constitution states: 1) Decisions of the Constitutional Court ruling stating that the injunction material content, articles, and / or parts of the Act against 7 with the 1945 Constitution, the material content of the paragraphs, chapters, and / or the Law Law does not have binding legal force. 2) The decision of the Constitutional Court ruling stating that the injunction establishment of the Act does not comply legislation under the 1945 Act it does not have binding legal force.