Chairman of Ombudsman Makassar Mulyadi Hamid shake hands with its legal counsel during the pronunciation of the verdict which granted their petition in part, on Tuesday (23 / 8) at the Plenary Court Room.

The Constitutional Court in its decision granting in part the petition of the petition in case number 62/PUU-VIII/2010 on Testing Law No. 37/2008 on the Ombudsman of the Republic of Indonesia (ORI) and Law No. 25/2009 on Public Service on the 1945, filed by Ilham Arief Sirajuddin, Mayor of Makassar, on Tuesday (23 / 8).

In the petition, the petitioner filed the test of Article 46 paragraph (1), subsection (2) ORI and Article 1 of Law number 13 of Law 25/2009 as judged contrary to Article 18 paragraph (2), and subsection (6), and Article 28D Paragraph (1) of the 1945 Constitution.

Article 46 Paragraph (1) of ORI reads, "By the time the Act comes into force, the name" Ombudsman "has been used as the name of the institution, agency, corporation, or any other issue which is not an Ombudsman institution is carrying out the functions and duties under This Law shall be replaced no later than 2 (two) years since the enactment of this Act. And, Paragraph (2) reads, "Institutions, agency, corporation, or other publications that do not implement the provisions referred to in paragraph (1), considered using the name" Ombudsman "illegally." While Article 1 number 13 of Law 25 / 2009 that reads, "The Ombudsman is a state institution has the authority overseeing the implementation of public service, both organized by the organizers of state and government including those held by the business entity belong to state, local state-owned and state-owned legal entities and private entities, and individuals who were given the task of organizing the public service of certain part or all of the funds sourced from the state budget revenues and expenditures and / or budget revenues and expenditures, "

Against the argument of unconstitutionality of Article 46 Paragraph (1) of ORI presented by the Petitioners, the Court argued that the word "ombudsman" has had a general sense even been accepted internationally as an independent function to receive reports and complaints, investigate, provide an alternative solution or provide policy recommendations or settlement of the complaint to a particular party. Similarly, understanding the ombudsman is widely known, people will quickly understand the ombudsman as compared with other terms in the Indonesian language, for example "institution of public complaints" that it still requires further explanation.
 
According to the Court, said the ombudsman also has the same familiar with the words "legal aid" that is easily understood meaning. Ombudsman function is needed for many things and by many parties, so if there is a monopoly of the use of the term ombudsman will greatly interfere with the process of public communication in conveying an idea or opinion. It would thus interfere with the rights and freedom to communicate of expression guaranteed in the constitution.

Therefore, the Court argued that an ombudsman cannot be monopolized by the state, as well as in the Act ORI. Therefore, the ban on establishment of the ombudsman's name by an institution or organ other than the Ombudsman of the Republic of Indonesia is not in line with the spirit and the constitutional protections guaranteed by the constitution that is the right to recognition, security, protection, legal certainty and a fair and equal treatment in before the law in government.

The ban, according to the Court, also contrary to the constitution guarantees the right of everyone to advance himself in the fight for their rights collectively to build a society, nation and country. Assurance and protection must also be given to any agency or institution to establish an ombudsman who runs an independent function to receive reports and complaints, investigate, provide an alternative solution or make recommendations on policy or resolution of the complaint to a particular party.

While on the Petitioners' argument on Article 1 number 13 of Law 25/2009, which the applicant considered contrary to Article 18 paragraph (2), and subsection (6), and Article 28D Paragraph (1) of the 1945 Constitution because it puts the state ombudsman as an institution so would negate the existence of the ombudsman institution has been established by local government that is not a state agency but has been running the functions and duties properly in the community has considered the Court.

The term state institutions, according to the Court, not necessarily linked to existing state institutions at central government level or established by the central government under the Act. However, in a broad sense, all the agencies, institutions or organs that perform state functions, established by the state or formed by the institutions or organs established by the state can be categorized as a state institution.

Thus, an institution or an organ called the state agency should not be given status in expressis verbis by law formation. In this case, it must be distinguished from state institutions to apply the right to dispute the authority of the Constitutional Court is limited to state institutions whose authorities are granted by the 1945 Constitution.
 
Therefore, the Court argued that there was no mention of the ombudsman as an issue of constitutionality of state institutions along the ombudsman institution was established by the state or by state organs. Thus, Article 1 number 13 of Law 25/2009 applies only to the ombudsman established by the state or government agency. Besides, does not mean the agency or non-governmental institutions can not establish an ombudsman to carry out the functions of the ombudsman for the purposes and needs of the institution without having referred to as a state institution (similar appointee in nongovernmental organization).
 
Based on all the legal considerations, the Court found the petition of the Petitioners' argument regarding the prohibition of all use of the name "Ombudsman" as referred to in Article 46 paragraph (1) and paragraph (2) of Law 37/2008 justified by law. "Passing, Declare: To grant the petition of the Petitioners for the most part, Article 46 paragraph (1) and paragraph (2) of Law no. 37 Year 2008 on the Ombudsman of the Republic of Indonesia (State Gazette of the Republic of Indonesia Year 2008 Number 139, Supplementary State Gazette of the Republic of Indonesia Number 4899) contrary to the Constitution of the Republic of Indonesia Year 1945, "said Mahfud MD. (Shohibul Umam / mh/Yazid.tr)