Application for judicial review of Law No. 6 of Year 2011 on Immigration filed by Prof. Dr. Yusril Ihza Mahendra, entering the final stages of the most decisive, the pronunciation of the decision in the Constitutional Court. In the verdict Court to grant some requests of Yusril. "Verdict, judgment, grant the petition states in part," said Chief Justice of the Plenary Session of the Constitutional Court, Moh Mahfud M0044 Said the decision No. 64/PUU-IX/2011 in a trial in the Constitutional Court on Wednesday (6/20/2012) afternoon.
Still in the ruling, the Court declared Article 97 paragraph (1) of Immigration along the phrase "every time" is contrary to the 1945 Constitution and has no binding legal force. The next paragraph of Article 97 (1) of Immigration to "true prevention period of 6 (six) months and may be extended more than 6 (six) months". Article 97 paragraph (1) previously stated, "Prevention is valid for a period longer than 6 (six) months and each time may be extended more than 6 (six) months." In addition, the Court ordered the loading of the decision in the Official Gazette of the Republic of Indonesia. Finally, states rejected a request for the addition and the rest.
Background of filing this petition was because Yusril prevented overseas for 6 (six) months of the Attorney General pursuant to Decree No. Kep-201/D/Dsp.3/06/2011 dated June 27, 2011 on "Prevention in Criminal Case". The main reason preventing Yusril, as stated in the preamble Attorney General’s decision was "for the benefit of judicial operations in the field of investigation". Yusril was allegedly involved in criminal cases and has been declared as suspects from the date of June 24, 2010.
Not Applicable Law
Coming to the prevention period expires, the Attorney General back to take reasonable precautions to Yusril through Decree No. Kep-195/D/Dsp.3/06/2011 dated June 24, 2011 for a period of time (1) year until June 25, 2012. Used was the same reason, i.e., "to operation in the field of judicial investigation". In fact, one of the legal base for doing that prevention is the Act No. 9 of 1992 which had been revoked and is no longer valid under Article 142 of Law 6 of 2011 from the date of May 5, 2011.
Yusril take the fight to the Decision of the Attorney General to make a claim to the Jakarta State Administrative Court. Deputy Attorney General Darmono, at first insisted that the decision to use the law that has been revoked and declared invalid, as "making a legitimate and correct". This sparked a debate among Justice Minister and some officials of the Directorate General of Immigration. However, when the lawsuit was filed in the Jakarta State Administrative Court, the Attorney General suddenly repeal Decree No. 195/D/Dsp.3/06/2011 dated June 24, 2011 and Prevention issued a new decree, the Decree No. Kep-201/D/Dsp .3/06/2011 dated June 27, 2001. This decision essentially prevents dictum Yusril abroad for 6 (six) months, according to the maximum term provided by Article 97 paragraph (1) Immigration Act is used as one of the basic law in the preamble of the decision.
Until Doomsday
Article 97 paragraph (1) Immigration Act states, "Prevention is valid for a period longer than 6 (six) months and each time may be extended more than 6 (six) months". According to Yusril, the phrase "and every time can be extended more than 6 (six) months", can lead to prevention of extension abroad of a citizen at the time of the investigation without the certainty of a time limit even ila yaumil qiyamah (until the coming of the day). This creates legal uncertainty which is contradictory to Article 28D paragraph (1) of the 1945 Constitution, and contrary to the right of citizens to choose their residence in the country and leave it, and the right to return as guaranteed by Article 28E Paragraph (1) of the 1945 Constitution.
Court’s opinion stated prevention abroad under Article 91 through Article 97 of Immigration Act. Article 91 stipulates that the authorities conduct prevention is the Minister of Justice and Human Rights. Prevention is based on the results of the supervision of Immigration, Minister of Finance and the Attorney General, request the Chief of Police of the Republic of Indonesia, Chairman of the Corruption Eradication Commission orders, requests the Head of the National Narcotics Board, and decisions, orders, or demand-led ministry / other agency under the Act have preventive powers. Article 16 paragraph (1) Immigration Act provides that if a person is in the list of prevention, or necessary for the purpose of the investigation at the request of the competent authority, the Immigration Officer may refuse that person to exit Indonesia Region. "Thus, one goal of prevention is for the benefit of the investigation, namely to prevent a person suspected of committing criminal offenses away from the law by escaping out of the area of Indonesia," said Usman Anwar Constitutional Court’s opinion reads.
According to the Court, the provisions of Article 97 paragraph (1) Immigration Act, especially the phrase "and every time can be extended more than 6 (six) months" on one side could create legal uncertainty for the suspects because it cannot be sure until when the investigation ends, and until when are preventive abroad over. On the other hand it can lead to arbitrariness of the state apparatus, namely the Attorney General, Minister of Justice and Human Rights, and other officials authorized to take reasonable precautions to suspects indefinitely. Such event ever experienced by A.M. Fatwa. When testifying at the trial Court, A.M. Fatwa tells prevented indefinitely and without a warrant in the prevention of the New Order government which is very painful.
The next result is a lack of clarity about the completion of a criminal case at the expense of justice, because justice delayed may lead to injustice (justice delayed is justice denied). Especially with prevention abroad against a suspect indefinitely, resulting in lack of freedom for the suspects in an indefinite period as well, with no penalty if you get a reduction in the end the suspect was sentenced by the court as a suspect / defendant is subject to detention as provided for in the city Criminal Procedure Code. (Rosihin Nur Ana / mh/Yazid.tr)
Wednesday, June 20, 2012 | 21:17 WIB 120