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The Constitutional Court declared the rules of the minimum size of 36 square meters in Law No. 1 of 2011 on Housing and Settlement area contrary to the 1945 Constitution. Ruling of the number 14/PUU-X/2012 was read by the Chairman of the Constitutional Court, Moh. Mahfud MD was accompanied by eight other constitutional judges.

"To declare the petition granted to all. Article 22 paragraph (3) of Law No. 1 of 2011 on Housing and Settlement area contrary to the 1945 Constitution. Article 22 paragraph (3) of Law No. 1 of 2011 on Housing and Settlement Region has no binding legal force, "said Mahfud read the verdict petition filed by the Central Board of Housing and Developers Association of Indonesia (DPP Apersi) is.

Constitutional Justice Muhammad Alim describes the implementation of housing and residential areas is one aspect of national development, the development of the whole person, as an effort to realize the fulfillment of constitutional rights, which is also the fulfillment of basic human needs that have a strategic role in the formation of character and personality of citizens as one of the efforts to achieve development goals of the nation of Indonesia berjati self, independent, and productive. As one of the fulfillment of constitutional rights, said Alim, organizing housing and residential areas are reasonable and even a necessity, when the organization in question must meet certain conditions, among others, health requirements and feasibility and affordability by the community, especially people who low income.

"In terms of affordability requirements by purchasing power, especially low-income communities, according to the Court, Article 22 paragraph (3) of Law 1/2011, which contains restrictions on floor space norm single home and home series measure at least 36 square meters, an arrangement inconsistent with the consideration of affordability by purchasing power some communities, especially low-income communities, "he explained.

Moreover, Alim added legal implications of these provisions means that prohibit the implementation of housing and residential areas to build a single house or a row house floor size is less than the size of 36 square meters. This, obviously Alim, meaning also has close opportunities for people who are less purchasing power or can not afford to buy a house in accordance with the minimum size. Moreover, the purchasing power of low income earners, from one region to another, is not the same. Similarly, the price of land and cost of construction of houses in an area with other different areas.

"Therefore, a uniform nationwide spacious floor size is not appropriate. In addition, the right to life physical and spiritual prosperity, residence, getting a good environment and healthy living, and the right to health services, as considered above is one of the fulfillment of human rights is not solely determined by the vast size of the floor of the house or place live, but is also determined by many factors, particularly factors gratitude to god for the gift given by the Almighty God, "he said.

Then, Alim explained that resident rights, private property rights is also one of human rights. A place to live, such as houses, can be rented home, it can also be privately owned homes. "If the sustenance provided by God Almighty then enough to build / own house floor area less than 36 square meters, forming the Act can not force him to build a house for the sake of having the floor space of at least 36 square meters, because the provision in question sufficient to build a new home that is less than that size. Based on the above considerations, the Court reasoned petition according to law, "he explained.

Aspects of Health and Feasibility Far More Important

In the decision, the Constitutional Court Hamdan Zoelva have a different opinion (dissenting opinion). According to Hamdan, in order to protect and fulfill economic and social rights of its citizens, the state can not allow the freedom to build a house that does not fit under the prescribed minimum standards, especially residential homes are built with state facilities. That's where the state's responsibility and obligation of constitutional guarantees for the fulfillment of the constitutional rights of its citizens live in a decent and healthy environment. With the minimum area prescribed law, the state also has the consequence also ensures convenience and affordability for Low-Income Communities (MBR) to get home, by providing subsidies, facilities and ease of getting home.

 Therefore, further Hamdan, if linked to the issue of affordability of purchasing power and square footage are two things that are not always relevant. The most essential thing is the size of the home at affordable prices is not the size of a small house. This means that the law guarantees a minimum floor area of a single home and home series at least 36 square meters, also implies that the state is obliged to provide convenience for people on low incomes to get a house with a variety of facilities and services. Measure of affordability is very relative, because no matter how small the house is considered affordable also can not guarantee that all or most of the people of Indonesia can have a home, because of differences in income levels. It depends on the level of house prices, rather than on the size of the house, despite widespread effect on prices.

"So I think the most important thing that should be guaranteed by the government is the health aspects and feasibility of healthy living that humans Indonesia to grow better and healthier. Affordable homes but not healthy, is a form of neglect of the constitutional rights of everyone to get a good and healthy living. Conducting affordable homes but not healthy, just let people live together improperly and not healthy, "he said. (Lulu Anjarsari / mh/Yazid.tr)

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