Kamis, 13 Oktober 2011
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Decision of the Constitutional Court (MK) which shall be final and binding (final and binding) was tested in the trial Court, Thursday (13/10/2011). Judicial review of Article 10 paragraph (1) of Act 8 / 2011 on the Constitutional Court was filed by Salim Alkatiri, a doctor on the island of Buru and expert staff in the Government of South Hulu regency, Maluku Province.
Article 10 paragraph (1) of Act 8 / 2011 the Constitutional Court Law reads: "The Constitutional Court has the authority to hear at the first and last decision is final for: a. test the laws against the Constitution of the Republic of Indonesia Year 1945; b. deciding authority dispute of state institutions whose authorities are granted by the Constitution of the Republic of Indonesia Year 1945; c. decide upon the dissolution of political parties; and d. decide upon disputes on general election results "
The article was, according to Salim, is contradictory to Article 28I Paragraph (2), and Article 27 Paragraph (1) of the 1945 Constitution. Salim argues, the Constitutional Court’s decision is final closing to take legal chances another. Salim considers the final decisions involve discrimination. He compares with the decision of the Supreme Court (MA), terraced starts from the District Court, Court of Appeal and Cassation at the Supreme Court. In addition there are legal remedies Review (PK). "This is discriminatory. Two of these agencies is the same agency. Why there is one, there is a review, reconsideration no? " said Salim.
Final decision of the Constitutional Court made him failed to follow the Election District of South Buru. Salim partner, La Ode Badwi Alkatiri does not pass verification, among others, because Salim had been sentenced for two years in prison for a crime of corruption of which the penalty over five years based on court decisions that have been legally enforceable.
Case Number 69/PUU-IX/2011 preliminary hearing was conducted by the Panel of Constitutional Justices Anwar Usman, as Chairman, accompanied by Sodiki and Muhammad Alim. Responding to the petition Salim, Ahmad Sodiki stated, the Court authority to hear the first and last, the final decision to test the law, is the sound of Article 24C Paragraph (1) of the 1945 Constitution. "Court is not authorized to change the Constitution, a change that is the MPR. So, should the proposal was presented at the Assembly. Article 24C Paragraph (1) it must be changed in accordance with the contents of the petition, "advises Sodiki. (Rosihin Nur Ana / mh/Yazid.tr)
Kamis, 22 September 2011
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Act 35/2009 on Narcotics contains the definition of ambiguous regarding drug abuse. It was stated by Asmin Fransisca when Petitioner was asked as expert in the plenary judicial Narcotics Law (Case Number 48/PUU-IX/2011) Thursday (09/22/2011) at the plenary chamber of the Constitutional Court.
Lecturer Faculty of Law, Atma Jaya and Indonesian Coordinating Coalition for Drug Policy Reform (ICDPR) This article mentions the three definitions of matter in which he confused the Narcotics Act, namely the definition of Article 1, item 13, Article 1 number 15, and the Explanation of Article 54.
"The confusion occurs in Article 1 number 13 and 15 in this Act may be abusers of narcotic addicts and drug users with a variety of factors, potentially very large to be abusers as well. Though these two definitions have different consequences, namely the first is the rehabilitation, while the other is the definition of punishment in prison, "explained Frances.
This confusion, Frances continued to complicate the practice of law enforcement, particularly police and prosecutors. Ambiguity of this definition makes legal certainty for addicts and abusers is not guaranteed, when the law enforcers to implement a single criminal prosecution article, namely Article 112 which explains about the ownership, control of narcotics without rights or against the law.
Narcotics Act material, according to Frances was quite confusing. On one side of the abusers and addicts have a right to health and social services through the rehabilitation process which will be determined by a judge later. However, on the other hand, they are potentially huge for the convicted and lose the right to rehabilitation services.
Whereas in the Narcotics Act Article 127 Article 127 expressly provides that judges shall take into account the provision of rehabilitation in accordance with Article 54, Article 55 and Article 103 for abusers. "This means, the nuances of the right to health, health services, adequate attention through this legislation," said Frances.
In contrast to Article 112 of the Narcotics Act governing people without rights and unlawfully possess, store, and control the supply of narcotics, which closes the possibility of our users or addicts in which a breach of Article 112 for direct access to rehabilitation services program. But in practice, from various literature studies have been conducted, many law enforcement agencies use these two chapters in the file examination simultaneously. Article 112 is also a chapter that is widely used for anyone, that is for addicts, abusers, or dealers, as well as narcotics producer.
This has led to confusion in law enforcement and creates a position between addicts and drug users, victims of drug abuse, with manufacturers and distributor are the same. "The action and effect the crime is very different. In Article 112, there are criminal penalties and fines are high enough that very expensive. Quite strange if criminal sanctions are high and very expensive fines imposed on addicts or abusers, "said Frances postulated.
The weakening of the Court authority
On the same occasion, the Court Case Number 49/PUU-IX/2011 also hear about the judicial Law 8 / 2011 on Amendments to Law 24/2003 on the Constitutional Court (Law Court). Former Constitutional Court Justice, who was asked as an applicant, wants a strengthening of the Constitutional Court Law. However, the opposite is true, that is weakening. It is strengthening it in order to allow checks and balances. "Changes made should be the actual empowerment of state institutions to perform their functions within the mechanism of checks and balances," said Maruarar Siahaan as usually called Maru.
Furthermore Maru said, the authority of state institutions provided for in the 1945 and then made arrangements so that further weakened the norm of law, is a separate constitutional issue. "How could a delegated authority from the constitution formulated re-formulated so it does not fit with the spirit of the constitution itself," the proposition Maru.
To note, on (05/08/2011) and the Court held a preliminary hearing for the two cases mentioned above. Mohammed Zainal Arifin, Petitioner’s attorney argues case Number 48/PUU-IX/2011 Article 45A and Article 57 paragraph (2) letter a and c of the Constitutional Court ruling to close the space of ultra petita (giving the decision beyond what the Petitioners filed). The provision is detrimental to Petitioner’s constitutional rights, because the likely effect on the Constitutional Court did not grant the application for judicial review filed by the Petitioner Narcotics Act. (Nur Rosihin Ana / mh/Yazid.tr)
Senin, 19 September 2011
Constitutional Court: Rights and Obligations of Employers-Workers Quit after Layoffs Verdict Inkracht
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Mechanism of termination of employment (FLE) has been regulated in Act 13/2003 on Manpower and Act 2 / 2004 concerning Industrial Relations Disputes Settlement (PPHI). Article 151 of Act on Manpower asserts, workers and employers should make every effort to avoid layoffs. If layoffs are unavoidable, then the workers and employers must meet to seek agreement. But if no agreement is reached, layoffs can only be done after a determination of the dispute settlement institutions of industrial relations.
Similarly, the Court’s opinion in the court pronounced the verdict Case Number 37/PUU-IX/2011, Monday (09/19/2011) housed in the courtroom Plenary Court Building. Application for judicial review was filed by Ugan Gandar, President of the Federation of Trade Unions Unite Pertamina (FSPPB), Eko Wahyu Secretary-General (FSPPB), and Rommel Antonius Ginting. The constitutionality of the applicant testing this phrase "not defined" in Article 155 paragraph (2) which states, "During the dispute settlement ruling institutions of industrial relations has not been established, both employers and workers / laborers shall continue to perform all its obligations" According to the Petitioners, the phrase is contradictory to Article 28D Paragraph (1) and Paragraph (2) of the 1945 Constitution.
In the ruling, the Court granted the petition of the Petitioner. Court stated the phrase "not defined" in Article 155 paragraph (2) of Act 13/2003 on Manpower against the 1945 Constitution to the extent not understood yet binding.
Court argued, layoffs are carried out without the approval of an industrial relations dispute settlement institutions become null and void [vide Article 155 paragraph (1) of Law 13/2003]. During the industrial relations dispute settlement institutions are still examining the process of layoffs, workers and employers should continue to perform the duties and obligations of each as provided for in Article 155 paragraph (2) of Act 13/2003.
When the dispute submitted to the Industrial Relations Court as provided for in Article 24 of Law 2 / 2004, then the dispute shall be deemed not final and binding until a court decision and binding. If the phrase "not defined" in Article 155 paragraph (2) of Act 13/2003 is associated with an industrial relations dispute settlement mechanism, then there is the potential for legal uncertainty for the parties about the meaning of the phrase "not defined" in Article 155 paragraph (2) of Law 13 / 2003.
On the other hand, Article 28D paragraph (1) and paragraph (2) of the 1945 Constitution has determined: "(1) Everyone has the right to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law, (2) Every person has the right to work and receive remuneration and fair and decent treatment in labor relations. "
Under the provisions of Article 28D paragraph (1) and paragraph (2) of the 1945 Constitution, according to the Court, there should be a definite interpretation associated the phrase "not defined" in Article 155 paragraph (2) of Law 13/2003, so there is a fair legal certainty in implementation of these phrases, so the parties can obtain guarantees and legal certainty against the acquisition of their rights in the event of industrial disputes.
According to the Court, the phrase "not defined" in Article 155 paragraph (2) of Law 13/2003 must be interpreted court decisions that have permanent legal force for the decision of the Industrial Relations Court one can directly obtain permanent legal force in the first instance by the Industrial Relations Court, namely decision regarding conflicts of interest, the decision regarding disputes between unions / workers in one company, as well as decisions regarding disputes and layoffs that are not filed an appeal. The decision regarding the dispute and the rights of appeal filed dismissals have to wait for the decision of the Supreme Court first new permanent legal force. Court’s opinion, the petition of the petition is proved and justified by law. (Nur Rosihin Ana / mh/Yazid.tr)
Rabu, 24 Agustus 2011
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Application of Dispute over Regional Head Election of Banjarnegara Regency, Central Java, the proposed pair Budhi Sarwono-Kusuma Winahyu Diah AT, rejected the Constitutional Court (MK). "Rejecting the petition in its entirety," said Chairman of the Plenary Assembly of the Constitutional Court, Moh. Mahfud MD. The agenda of the plenary session is reading the verdict on Tuesday (8/23/2011) on l 2 plenum chamber of the Constitutional Court building.
Budhi Sarwono-Kusuma Winahyu Diah A.T. a pair of candidates Regent / Vice Regent Banjarnegara Year 2011 with serial number 2. Couples who depart from the path of individual (independent) is occupying the second place votes, under the acquisition-mate Sutedjo Slamet Utomo-Hadi Supeno.
Following the vote Banjarnegara district level for each candidate based on the recapitulation of votes assigned Banjarnegara District Election Commission (KPU) Banjarnegara District: Pair Syamsudin -Toto Hardono (number 1) to obtain 105,313, the Budhi Sarwono-Kusuma Winahyu Diah AT (Numbered 2) 170 076 votes, the couple M. Yusrie, M. Najib (numbered 3) 23 007 votes, and the last couple Sutedjo Slamet Utomo-Hadi Supeno (numbered 4) 199 065 votes.
Pair Budhi Sarwono-Kusuma Winahyu Diah AT filed an objection to the Court against such recapitulation. The couple argues, established the Commission Banjarnegara recapitulation generated from the process that is not true, because it marked a number of offenses involving fraud and election organizers, the bureaucracy, the head of the village, and village. Fraud and abuse, according to Budhi Sarwono-Kusuma Winahyu Diah AT, made before, during and after implementation of the ballot on July 24, 2011.
Budhi Sarwono-Kusuma Winahyu Diah AT claims to get 310,791 votes. This acquisition is based on the amount of support by name by address set forth in the form of book support which is taken from real data collection District Coordinator (Korcam) and Coordinator of the Village (Kordes) and Coordinator of polling stations, spread across 20 districts.
After looking at the evidence presented by the parties, according to the Court, its rightful share of the vote in the general election is when voters actually vote. Meanwhile, support to independent candidates who have not legitimately use their voting rights, can not be the basis of vote of Budhi Sarwono-Kusuma Winahyu Diah AT.
As for the number of fraud and breach-as argued by Budhi Sarwono-Kusuma Winahyu Diah AT, the Court argued, did not prove to be a structured, systematic, and massive that significantly affect the vote Budhi Sarwono-Kusuma Winahyu Diah AT that exceeds the vote-pair Sutedjo Slamet Utomo-Hadi Supeno. Therefore, according to the Court, the argument was not proven according to law. (Nur Rosihin Ana / mh/Yazid.tr)
Kamis, 11 Agustus 2011
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Dispute over Regional Head Election of District Pati entered the stage to hear witness testimony in the hearing of the Constitutional Court (MK), Thursday (08/11/2011) afternoon. On the front panel of the Constitutional Court chaired by Achmad Sodiki and accompanied by Panel Members Ahmad Fadlil Sumadi and Harjono, Chief of Police describe the process of securing Election Pati based on operations Mina Tani Tata Praja.
Police fielded 489 personnel to secure for each phase of the General Election. "Until now, the implementation process of the elections conducted by the police in a safe state," said Chief of Police. Nevertheless, he continued, the institute received four reports of counterfeit stamp Election complaint, unpleasant acts, abuse of academic titles and the last of destruction in the district Wedarijaksa.
Police also denied the existence of the KPU office siege Starch as a description of Thunder, the witness spouse Imam Suroso-Sujoko (Applicant case Number 82/PHPU.D-IX/2011). "No one besieged Commission office. This means that we sterilize the KPU office in order to avoid intervention so that the Commission has the independence, "he explained.
Further Members of the Panel Harjono confronts police chief information with the description of Thunder. According to Guntur, on May 19, the Election Commission Office located in the complex Stadium Joyokusumo, thousands of supporters surrounded the couple Sunarwi-Tejo Pramono. "On 19, at 18:30 we were willing to hand over the files necessary administrative candidates," said Thunder. Guntur also explains the existence of noise and deprivation brought about by Sujoko file in the Office of the Commission Pati.
Harjono again asked Police Chief Starch-related action the Commission Office Starch siege by thousands of supporters Sunarwi-Tejo. "If thousands, Your Honor, baseball possible," said Police Chief Starch that time of the incident claimed to be the KPU Starch. "If it is not possible, you see a lot of baseball there mass?" said Harjono. "There’s masses, but more police, your honor," said Police Chief of Pati.
The judge panel also provides the opportunity for prospective vice-regent Sujoko communicated. According to Sujoko, on May 11, after a complete nomination file, search for Chairman of DPC PDIP Sujoko, Sunarwi, and Secretary of the DPC PDIP. However, Sunarwi continue to dodge the grounds were away pilgrimage. "I continue to be avoided, Mr. Narwi went outside," said Sujoko. Then, he continued, the morning of May 17, Sujoko neighbor went to the house, Endro Jatmiko who are members of the Commission to ask for an explanation exposures Starch authority to enter a file that can only be done by the Chairman and the Secretary of DPC PDIP Starch. "I came not ask for an explanation why this should be the chairman and the secretary to enter a file? Wong I was vice-chairman, "he explained. The news he can from his wife stating Endro Endro had gone to the KPU. "Why is a red date to the Commission why?" Sujoko joked.
Authority Chairman and the Secretary of DPC
Meanwhile, KPU chairman Pati Nursastro Salomo in his reply stated, on May 17, the Commission received a replacement pair of Sunarwi carried by PDIP, which initially brought the couple Imam Suroso-Sujoko, change into the pair of Sunarwi-Tejo.
"Is it enough that the recommendations of the DPC alone, or should the DPP, according to who you know," asked the Panel Members Ahmad Fadlil Sumadi. "No recommendation, Your Honor. The one candidate replacement letter of submission, "said Nursastro. In addition, the added Nursastro, the recommendation is not required under the rule of law.
Strengthening the Commission answers Pati, Central Java Provincial Election Commission declared, authorized repair, equip, or propose a new candidate pair are leaders of political parties. The definition of political party leaders according to regulations of Article 59 paragraph (1) letter a mention, leaders of political parties is the chairman and secretary of the political party nomination at the local level. "So who has the right to nominate, including repairing and propose a new candidate pair is the chairman and secretary of the DPC of each political party," explained the Commission of Central Java.
Then associated with the recommendation, he added, there is not one article was in the laws and regulations the Commission stated that the recommendation is a requirement that must be submitted to the KPU. "So there is a recommendation or no recommendation that a political party’s internal problem," said the Election Commission of Central Java. (Nur Rosihin Ana / mh/Yazid.tr)
Selasa, 09 Agustus 2011
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Disputes Election Results of the Regional Head Election of Pati regency, Central Java, was held again in the trial in the Constitutional Court (MK), Tuesday (08/09/2011). Hearings conducted by the Panel of Judges chaired by Achmad Sodiki, accompanied by Ahmad Fadil Sumadi and Harjono, scheduled to hear the answer to the Respondent of the General Elections Commission (KPU) of Pati District, heard the testimonies of the Related Party, and Evidence.
Responding to the request Slamet Warsito-Srimulyani (Applicant case Number 81/PHPU.D-IX/2011), Pati Commission through its legal counsel, Umar Ma’ruf in his exception plead obscure (obscuur libel). "In the petition, the Petitioner does not refer to problems associated with its pure PHPU. Postulated is related to the violations that are structural problems, systematic, and massive, "said Umar.
Umar also break proposition of Slamet Warsito-Srimulyani petition on the issue of the minutes of the recapitulation of the results of Election. Starch Commission has done his duty is to give a recap of the minutes of the five pairs of candidates who attended. "Petitioner is present at the recapitulation, but then not finished already out. So of course we can not provide. Then we came to the witness stand than the Applicant. Applicants and witnesses are not willing to accept the minutes of this recapitulation, "added Omar.
In addition, the Commission also denied the argument of Slamet- Warsito-Srimulyani quick count conducted on KPU Pati. "What we do is temporary calculations. And while we do the calculation for 83% of polling stations, instead of 100%, "said Umar.
Then, issues related to polling stations in the yard the village chief, Omar explains the absence of prohibition in this regard. "The existing prohibition as PKPU No. 72 of 2009 is a place of worship, including the pages is not justifiable to use as polling stations," said Umar. Starch Commission also confirmed not aware of any mobilization of civil servants and the use of State facilities. He said he pleaded not get clarification from Election Supervisory Committee of Pati.
Internal problems of PDIP
In the same occasion the Commission of Pati also want to respond to the request of Imam Suroso-Sujoko (Applicant case Number 82/PHPU.D-IX/2011). KPU Pati insisted was never going to make a disqualification or abort candidates Imam Suroso-Sujoko. Commission recognizes the Imam Suroso-Sujoko is going to candidates who have proposed and registered by the DPC PDIP Starch at the time of registration dated May 5, 2011.
Then by the DPC PDIP during repair, replacement with new candidates filed. This new replacement candidates in accordance with the provisions of Article 60 paragraph (3) of Law Number 12 Year 2008. "So it must be understood PDI-P is an internal issue, not a question of the relationship between the Petitioner and the Regency of Pati," said Umar.
Next Umar Ma’ruf, attorney KPU Pati detailed their verification stage chronology of Imam Suroso-Sujoko pair. On May 11, 2011, Umar said, there are messengers from the candidate pairs will be present to the Commission, which will complete the files. "But because it is not on time, then we can not accept," said Umar.
"Because the present is the Chairman and Secretary of the DPC PDIP Pati District then that we received the replacement candidate, and this also in the framework of the precautionary principle we consulted the Central Election Commission, and the Central Election Commission declared, meet the provisions in this law , so we implement this, "said Umar. (Nur Rosihin Ana / mh/Yazid.tr)
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Jucicial review the constitutionality of the material Act 1 / 1974 on Marriage filed Agustina Halimah binti Abdullah Kamil, re-tried in the Constitutional Court (MK), Tuesday (09/08/2011). The trial for case No. 38/PUU-IX/2011 heard expert testimony.
In the presence of nine Constitutional Court Justices headed by Moh. Mahfud MD, the power of the Government, H. Sincerely declares, in the language of religious marriage is called mitsâqan ghalîzhan is a strong agreement, to justify the unlawful and makes worship. Marriage is intended to establish a family life is eternal, whole, harmonious, happy, and prosperous. And is a form of servitude to Allah SWT.
"For that, the marriage is necessary to mutual understanding, understanding, awareness to build a family that sakinah, mawaddah, wa Rahmah," Sincere said the Government read the written statement.
Marriage Law, in case the arrangement of a marriage breakup, according to the government, has given signs that sufficient to provide a way out for the husband and wife if they are not able to maintain a harmonious household. Article 39 paragraph (1) Marriage Law which states, "Divorce can only be done in front of the courtroom after a court in question tried and failed to reconcile the two sides."
"This provision suggests that divorce is a last resort that should be taken if both parties can not maintain the integrity of the household," said Sincere.
According to the Government, divorce cases that occurred between the Applicant (Halimah bint Abdullah Agustina Kamil) with her husband (HM Soeharto’s son Bambang Trihatmodjo) is related to the implementation of law enforcement practices undertaken by law enforcement, in this case to the Court of Justice and Religious Affairs is not an issue of constitutionality provisions petitioned for review them.
Based on the explanation, the Government asked the Court to reject the petition Halimah. "Rejecting the petition entirely," pleaded Sincere.
On the same occasion, Halimah who represented his legal counsel, Chairunnisa Jafizham and Laica Marzuki, presented three experts, namely Bismar Siregar, Marzuki Darusman, and Makarim Wibisono. Bismar Siregar, said in his statement, the divorce between the Halimah Bambang Tri Suharto after a few tens of years they foster domestic life, raising questions. Because the petition Cassation Bambang examined and tried by the Supreme Court Judge who stated that the relationship between the Halimah Bambang incompatible with the harmony. Therefore, Bambang has the right to drop the divorce.
Meanwhile, Marzuki Darusman said, the explanation of Article 39 paragraph (2) f of Marriage Act has the potential to be abused. "The problem that may arise among them, is primarily a result of the wrongdoing of the parties, in general, men in relationships with third parties that can not be accepted by the other party, usually the woman. In practice, the situation is what led to the elucidation of Article 39 paragraph (2) f of more harmful to women and lead to women’s rights as human rights become vulnerable, "said Marzuki.
In line with Marzuki, experts Makarim Wibisono applicant states, the explanation of Article 39 paragraph (2) f is detrimental to women and wives for not giving justice to him and reflects the lack of equal rights for women with the rights of husbands and wives. The husband can easily divorce his wife by reason of continuous disputes and quarrels.
"Because that provision did not request or require clarification of who causes, who the trigger, or what was to become prime clauses. This is unfair, anyone women or wives who build the basis of noble households, derived from a sense of love and affection will not be able to receive if her husband’s affair and had an affair with another woman (WIL), "said Makarim . (Nur Rosihin Ana / mh/Yazid.tr)