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Menggagas Judicial Activism dalam Putusan Presidential Threshold di Mahkamah Konstitusi Bagus Surya Prabowo
Jurnal Konstitusi Vol 19, No 1 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (359.72 KB) | DOI: 10.31078/jk1914

Abstract

This study aims to explain the application of judicial activism carried out by the Constitutional Court and the reasons for the need for the Constitutional Court to apply judicial activism in the presidential threshold decision through normative juridical research by explaining interrelated principles. The study results show that the Constitutional Court often uses judicial activism as in the Decisions of the Constitutional Court Number 5/PUU-V/2007 and Number 102/PUU-VII/2009. Based on the two decisions, there are at least three considerations of the Constitutional Court in implementing judicial activism that has been fulfilled in cases of presidential threshold, namely, 1) political discrimination, 2) violations of constitutional rights, and 3) a socio-political emergency occurs. Therefore, the Constitutional Court has a basis for testing the threshold that violates morality, rationality, and intolerable injustice. Thus, the Constitutional Court should use judicial activism to give appreciation for substantial justice to revive the value of expediency and justice in society.
Konsistensi Pembuatan Norma Hukum dengan Doktrin Judicial Activism dalam Putusan Judicial Review Bagus Surya Prabowo; Wiryanto Wiryanto
Jurnal Konstitusi Vol 19, No 2 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (339.022 KB) | DOI: 10.31078/jk1925

Abstract

This study intends to explain the consistency of the Constitutional Court (MK) in making new legal norms by using the doctrine of judicial activism and to explain the factors that underlie the consistency of the Constitutional Court in making new legal norms through normative juridical research by explaining the principles, principles, and analysis of interrelated decisions. This study concludes that the Constitutional Court is inconsistent because it only grants and makes new legal norms in the Constitutional Court Decision Number 5/PUU-V/2007. Meanwhile, in the Constitutional Court's Decision Number 53/PUU-XV/2017, the Constitutional Court refused to make a new norm even though the two cases created discrimination and limited public participation in politics. The inconsistency factors include: 1) jurisprudence factors, 2) the application cannot convince the majority of the judges of the Constitutional Court, and 3) the paradigm factor of judges.
Konstitusionalitas Pelunasan Utang Pajak Perusahaan Pailit Berdasarkan Putusan Pengadilan Bagus Surya Prabowo; Wiryanto Wiryanto
Jurnal Konstitusi Vol 18, No 4 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (432.988 KB) | DOI: 10.31078/jk1841

Abstract

The decision of the Constitutional Court Number 41/PUU-XVIII/2020 states that the appointment of the management as a representative of a taxpayer in the form of an entity aims to guarantee certainty that the actions of a legal entity can be held accountable, equivalent to the guarantee of the right of a legal entity to do or not to do something for the sake of the legal entity in question (which incidentally ends up in the interests of the management and shareholders). The management is the main party who is held accountable for the actions/actions of a legal entity because the management operates it in a daily basis. The imposition of responsibilities of a legal entity (which cannot do anything without human assistance) to a person or group of management is not contrary to the 1945 Constitution. Likewise in the case of corporate tax obligations, the provisions that impose the settlement of an entity's tax obligations (debts) bankrupt company tax) to the management of the agency represented by the curator is in accordance with the 1945 Constitution. In accordance to Article 32 paragraph (2) of the KUP Law with the norms of the 1945 Constitution, especially in terms of providing protection and fair legal certainty to all parties interacting with legal entities, including the Applicant who is the administrator of the legal entity, as guaranteed by Article 28D paragraph (1) of the 1945 Constitution. One form of the rights of the parties that interacts with legal entities is the right of the state to receive payment of taxes from a certain legal entity through a party or person acting as the administrator of the legal entity. This article discusses the constitutionality of paying tax debts to companies that declared bankrupt by a court decision.
Menggagas Judicial Activism dalam Putusan Presidential Threshold di Mahkamah Konstitusi Bagus Surya Prabowo
Jurnal Konstitusi Vol. 19 No. 1 (2022)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1914

Abstract

This study aims to explain the application of judicial activism carried out by the Constitutional Court and the reasons for the need for the Constitutional Court to apply judicial activism in the presidential threshold decision through normative juridical research by explaining interrelated principles. The study results show that the Constitutional Court often uses judicial activism as in the Decisions of the Constitutional Court Number 5/PUU-V/2007 and Number 102/PUU-VII/2009. Based on the two decisions, there are at least three considerations of the Constitutional Court in implementing judicial activism that has been fulfilled in cases of presidential threshold, namely, 1) political discrimination, 2) violations of constitutional rights, and 3) a socio-political emergency occurs. Therefore, the Constitutional Court has a basis for testing the threshold that violates morality, rationality, and intolerable injustice. Thus, the Constitutional Court should use judicial activism to give appreciation for substantial justice to revive the value of expediency and justice in society.
Konsistensi Pembuatan Norma Hukum dengan Doktrin Judicial Activism dalam Putusan Judicial Review Bagus Surya Prabowo; Wiryanto Wiryanto
Jurnal Konstitusi Vol. 19 No. 2 (2022)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1925

Abstract

This study intends to explain the consistency of the Constitutional Court (MK) in making new legal norms by using the doctrine of judicial activism and to explain the factors that underlie the consistency of the Constitutional Court in making new legal norms through normative juridical research by explaining the principles, principles, and analysis of interrelated decisions. This study concludes that the Constitutional Court is inconsistent because it only grants and makes new legal norms in the Constitutional Court Decision Number 5/PUU-V/2007. Meanwhile, in the Constitutional Court's Decision Number 53/PUU-XV/2017, the Constitutional Court refused to make a new norm even though the two cases created discrimination and limited public participation in politics. The inconsistency factors include: 1) jurisprudence factors, 2) the application cannot convince the majority of the judges of the Constitutional Court, and 3) the paradigm factor of judges.
Konstitusionalitas Pelunasan Utang Pajak Perusahaan Pailit Berdasarkan Putusan Pengadilan Bagus Surya Prabowo; Wiryanto Wiryanto
Jurnal Konstitusi Vol. 18 No. 4 (2021)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (432.988 KB) | DOI: 10.31078/jk1841

Abstract

The decision of the Constitutional Court Number 41/PUU-XVIII/2020 states that the appointment of the management as a representative of a taxpayer in the form of an entity aims to guarantee certainty that the actions of a legal entity can be held accountable, equivalent to the guarantee of the right of a legal entity to do or not to do something for the sake of the legal entity in question (which incidentally ends up in the interests of the management and shareholders). The management is the main party who is held accountable for the actions/actions of a legal entity because the management operates it in a daily basis. The imposition of responsibilities of a legal entity (which cannot do anything without human assistance) to a person or group of management is not contrary to the 1945 Constitution. Likewise in the case of corporate tax obligations, the provisions that impose the settlement of an entity's tax obligations (debts) bankrupt company tax) to the management of the agency represented by the curator is in accordance with the 1945 Constitution. In accordance to Article 32 paragraph (2) of the KUP Law with the norms of the 1945 Constitution, especially in terms of providing protection and fair legal certainty to all parties interacting with legal entities, including the Applicant who is the administrator of the legal entity, as guaranteed by Article 28D paragraph (1) of the 1945 Constitution. One form of the rights of the parties that interacts with legal entities is the right of the state to receive payment of taxes from a certain legal entity through a party or person acting as the administrator of the legal entity. This article discusses the constitutionality of paying tax debts to companies that declared bankrupt by a court decision.
Co-Authors Wiryanto Wiryanto