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All Journal Kertha Negara : Journal Ilmu Hukum JURNAL MAGISTER HUKUM UDAYANA Jurnal Hukum IUS QUIA IUSTUM Journal of Indonesian Legal Studies Constitutional Review Jambe Law Journal Udayana Journal of Law and Culture Journal Equity of Law and Governance Jurnal Konstitusi Journal of Social Research East Asian Journal of Multidisciplinary Research (EAJMR) Indonesia Law Review (ILREV) Jurnal Penelitian Hukum De Jure
I Dewa Gede Palguna
Fakultas Hukum Universitas Udayana
Arts Humanities Computer Science & IT Decision Sciences, Operations Research & Management Economics, Econometrics & Finance Education Industrial & Manufacturing Engineering Law, Crime, Criminology & Criminal Justice Social Sciences

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Kedudukan Putusan Mahkamah Konstitusi dan Perlindungan Hak Konstitusional Penghayat Kepercayaan I Dewa Gede Palguna
Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 10 No 3 (2021)
Publisher : University of Udayana

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24843/JMHU.2021.v10.i03.p06

Abstract

This study is a normative legal research which aims at discovering answers of two fundamental questions, namely, first, how is the status of the decisions of the Indonesia’s Constitutional Court according to the country’s constitutional system; secondly, what legal remedies may be pursued by the Indonesian citizens who are followers of indigenous beliefs whose constitutional rights to embrace such beliefs remain infringed despite there has been the decision of the Indonesia’s Constitutional Court Number 97/PUU-XIV/2016 which confirms the constitutional guarantee of such beliefs. With respect to the first issue, the study found that the status of the Court’s decision was equal to Law because it was the product of a negative legislator. In addition, because the Court was also the interpreter of the Constitution (UUD 1945), then its decision was the Court’s constitutional interpretation concerning the issue at hand. As to the second issue, the study found that the followers of indigenous beliefs could file several legal remedies, namely citizen suit; class action; individual law suit; and submitting a formal complaint to the president, as the highest chief administrative officer, asking the president to reprimand its subordinates and to instruct them to observe the Court decision. Kajian ini adalah sebuah penelitian hukum normatif yang bermaksud menemukan jawaban atas dua pertanyaan mendasar yaitu, pertama, bagaimana kedudukan dari putusan Mahkamah Konstitusi menurut sistem ketatanegaraan Indonesia; kedua, jalan hukum apa yang dapat ditempuh oleh warga negara Indonesia penghayat kepercayaan yang hak konstitusionalnya untuk menganut keyakinan tersebut tetap dirugikan meskipun telah ada Putusan Mahkamah Konstitusi Nomor 97/PUU-XIV/2016 yang menegaskan jaminan konstitusi terhadap hak tersebut. Terhadap isu pertama, kajian ini menemukan jawaban bahwa kedudukan putusan Mahkamah Konstitusi adalah setara dengan undang-undang karena merupakan produk dari negative legislator. Sebagai tambahan, oleh karena Mahkamah Konstitusi juga merupakan penafsir Konstitusi (UUD 1945), maka putusannya adalah penafsiran konstitusional Mahkamah terhadap masalah yang sedang ditanganinya. Terhadap isu kedua, kajian ini menemukan jawaban bahwa penghayat kepercayaan dapat mengajukan beberapa upaya hukum, yaitu gugatan warga negara, gugatan kelompok, gugatan individual, dan membuat pengaduan resmi kepada presiden, selaku kepala pemerintahan tertinggi, dan meminta agar presiden memperingatkan bawahannya serta memerintahkan mereka untuk mematuhi putusan Mahkamah Konstitusi.
Constitutional Question: Latar Belakang dan Praktik Di Negara Lain Serta Kemungkinan Penerapannya Di Indonesia I Dewa Gede Palguna
Jurnal Hukum IUS QUIA IUSTUM Vol. 17 No. 1 (2010)
Publisher : Fakultas Hukum Universitas Islam Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.20885/iustum.vol17.iss1.art1

Abstract

The adoption of constitutional question mechanism in the constitution court system, (known as constitutional adjudication), regarded as part of providing a maximum protection to the citizen’s constitution rights. The kind of protection is a must-have entity in every law-based nation (in the democratic system). For Indonesia, which has ambition to establish a democracy-based life along with law-based life, as been said in Article 1 Section 2 and 3 in 1945 Constitution, the consideration for adopting a mechanism of “constitutional question” is not impossible to happen. Even more, logically, it is a need.Key word : constitutional question, Constitutional Court of Law, Law-Based nation, Indonesia
Constitutional Complaint and the Protection of Citizens the Constitutional Rights I Dewa Gede Palguna
Constitutional Review Vol 3, No 1 (2017)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (473.403 KB) | DOI: 10.31078/consrev311

Abstract

Constitutional complaint is one of important issues to be dealt with by severral countries issues adopting constitutional court in their national legal system and the Federal Constitutional Court Germany (Bundesverfassungsgericht) is considered by expert as one of the most advance mechanism among countries in dealing with the issue. Generally speaking, constitutional complaint can be described as a complaint or lawsuit filed by an individual citizen who deems his or her constitutional right (s) has been violates by act or omission of public institution or public official. Mostly, such a complaint can only be filed it theere is no other legal remedy available or all legal remedies available have been exhausted. The Constitutional Court of The Republic of Indonesia however is not entrusted with authority to hear constitutional complaint case not withstanding the fact that statistical data on judicial review cases filed by many petitioners before the Court were substantially constitutional complaint issues. It means that, empirically giving the Court to hear constitutional complaint case is necessarily pivotal and theoritically, the Court has the very foundation to be entrusted withq such authority. Considering the complex mechanism to amend the Constitution of 1945, which exhaustively deserible the court’s authorities, this article offers the lawmaker a theoretical insight tio give the Court a limited authority to hear constitutional complaint case by the way of amending the law on Constitutional Court.
The Regulation of the Ownership of Flats by Foreigners after the Enactment of the Job Creation Law Salain, Made Suksma Prijandhini Devi; Palguna, I Dewa Gede; Widiatedja, I Gusti Ngurah Parikesit
Indonesia Law Review Vol. 12, No. 1
Publisher : UI Scholars Hub

Show Abstract | Download Original | Original Source | Check in Google Scholar

Abstract

The presence of foreigners in Indonesia for a long period certainly requires a place to live or a residential house. According to Article 144 (1) b of Job Creation Law, foreigners have the right to own flat units in Indonesia. Is this regulation intended to attract foreign investors? If it is yes, does not it contradictory to the “kenasionalan” principle stipulated in the Basic Agrarian Law (BAL) and other Indonesian regulations? This study is aimed to deal with those legal issues, by using the normative legal method. The result shows that the ownership right of flat units given to foreigners by the Job Creation Law is in contradiction with the “kenasionalan” principle, Article 33 paragraph (3) of the 1945 Constitution, and the BAL which only allows land/building use and lease right for foreigners. In addition, the regulation which allows the establishment of flats on land with building-use rights for a maximum of 80 (eighty) years raises a legal problem since such regulation had been revoked by the Constitutional Court of the Republic of Indonesia with its Decision Number 21-22/PUU-V/2007. Thus, the study recommends that the Government conduct a review of the regulation which allows foreigners to have ownership right to flat units under the Job Creation Law.
Towards Quality and Sustainable Tourism in Bali: Should the Regional Master Plan be Adjusted? I Dewa Gede Palguna; Anak Agung Gede Duwira Hadi Santosa; Made Maharta Yasa; I Gede Pasek Pramana
Udayana Journal of Law and Culture Vol 7 No 1 (2023)
Publisher : Faculty of law Udayana University

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24843/UJLC.2023.v07.i01.p03

Abstract

Bali is the area in Indonesia that is most affected economically due to the paralysis of the tourism industry during the Covid-19 Pandemic. Consequently, tourism development programs designed by the government faced many obstacles in their implementation. This article discusses how the concept of quality and sustainable tourism are incorporated into the Tourism Master Plan of the Bali Province 2015-2029. Further, it evaluates the implementation of the master plan during the Covid-19 Pandemic. This writing is designed based on legal research that applies a policy-oriented approach. The research collected and analyzed primary sources in the form of law, regulation, and policy at the national and regional levels, as well as secondary sources that are available in textbooks, journal articles, and website content. A series of qualitative interviews and a focus group discussion were conducted to deepen understanding of legal and non-legal matters. This article suggested that even though the concept of quality and sustainable tourism has been incorporated into the aforementioned master plan, the document implies a contradiction between the vision that desires to apply the concept and the goals and objectives which tend to support quantity tourism. The qualitative evaluation indicated that the master plan could not be appropriately implemented and requires an adjustment to bring in again the vision into the implementing policy adopted by the provincial government.
The Power of Constitutional Court to Settle Disputes on Local Election Results : Kewenangan Mahkamah Konstitusi Memutus Perselisihan Hasil Pemilihan Kepala Daerah Bisariyadi Bisariyadi; I Dewa Gede Palguna
Jurnal Konstitusi Vol. 20 No. 1 (2023)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk2011

Abstract

Constitutional Court Decision No. 85/PUU-XX/2022 abolished the proposal to establish a special court that have the power to resolve disputes on local election. As a result, that power shifted to Constitutional Court. This, de facto, is not the power designed to be exercised by the Court. Back tracked on historical trajectory of holding direct local elections, there has been a tug-of-war between judicial bodies on who have the legitimate power to settle the disputes on local elections results. This study aims to examine the power of Constitutional Court to adjudicate disputes on local election results. To achieve the research objective, this research framework will look at the historical context to have an overview of the dynamics of transposition of judicial bodies to settle the disputes. In addition, this also assess Constitutional Court decisions which provide interpretations as the basis for the legitimacy of the Court's power to adjudicate local election disputes.
Indonesia’s Constitutional Court Decisions on Outsourcing Scheme: Balancing Protection and Efficiency? Palguna, I Dewa Gede; Nurjanah, Ita; Padmawati, Ni Komang Tari; Dananjaya, I Komang; Halmadiningrat, I Made
Journal of Indonesian Legal Studies Vol 8 No 2 (2023): Contemporary Issues on Law, Development, and Justice: Indonesian Context and Beyo
Publisher : Universitas Negeri Semarang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15294/jils.v8i2.66507

Abstract

This article explores the Indonesian Constitutional Court’s views through its decisions in shaping the practice of outsourcing in Indonesia based on the 1945 Constitution. The study was first conducted by analyzing Decision No. 012/PUU-I/2003 and later Decision No. 27/PUU-IX/2011. The novelty of this research is evident from the involvement of perspective in analyzing the outsourcing scheme in Indonesia as newly regulated in several laws, namely Job Creation Law and the Government Regulation in lieu of Job Creation Law. Using the normative legal research method, the authors used statutory, case, and conceptual approaches. Based on the research conducted, the authors found that the Constitutional Court aims to uphold the balance of companies’ efficiency and outsourced workers’ rights protection. The findings are evidenced by the Constitutional Court’s stance in a decision that implies that outsourcing is constitutional to enhance the State’s economy while simultaneously protecting the outsourced workers’ rights to ensure the fulfillment of their constitutional rights by setting two-fold models of protection. Therefore, even if new outsourcing scheme regulations are issued, the criterion of legality in future judicial reviews must involve determining whether such balance has been sufficiently met.
Legal Morality of Constitutional Court Decision Number 90/PUU-XXI/2023 Based on Pancasila Wijaya, Made Hendra; Subawa, I Made; Palguna, I Dewa Gede; Astariyani, Ni Luh Gede; Sumadi, I Putu Sudarma
East Asian Journal of Multidisciplinary Research Vol. 3 No. 9 (2024): September 2024
Publisher : PT FORMOSA CENDEKIA GLOBAL

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.55927/eajmr.v3i9.10863

Abstract

Pancasila, as the source of legal morality of Indonesia, is used as the primary benchmark by Judges of the Constitutional Court in providing decision. The paper at hand explains that the constitutional court decision Number 90/PUU-XXI/2023 has moral weaknesses related to legal behaviour derived from Pancasila, specifically, First: Constitutional Court Decision had led to conflict and arising different views that potentially might cause disruption to Indonesia nation entity. Second: Constitutional Court Decision does not fully align with the Wisdom in Deliberation principle contained in the Fourth Principle of Pancasila. Third: Constitutional Court Judgment does not satisfy the sense of justice for Indonesian People. This paper employs a normative research method with a conceptual approach and a value-based approach.
The Legal Power of the Constitutional Court Decisions Remains Suandika, I Nyoman; Usfunan, Yohanes; Palguna, I Dewa Gede; Adiyaryani, Ni Nengah
Journal of Social Research Vol. 2 No. 12 (2023): Journal of Social Research
Publisher : International Journal Labs

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.55324/josr.v2i12.1606

Abstract

Issues relating to granting permanent legal force to decisions of the constitutional court immediately after they are pronounced in a plenary session open to the public are important to research for several reasons Firstly, it is very important for us to know the rationale for granting permanent legal force to decisions of the constitutional court given immediately after completion. pronounced in a public meeting open to the public. Second, understanding the permanent legal force of constitutional court decisions is also related to the question of why it is not possible to have legal efforts to correct constitutional court decisions if errors occur in terms of achieving legal certainty. Based on this, the question also arises as to whether the constitutional court's decision regarding this error will continue or not. Third, it is related to whether the legislator (positive legislator) can override the decision of the constitutional court. What is the rationale underlying the granting of permanent legal force to a Constitutional Court decision from the moment it is pronounced in a session open to the public? This research is normative legal research because there is a legal vacuum if the constitutional court's decision is contrary to the spirit of the 1945 Constitution. The importance of immediacy in granting permanent character to the constitutional court's decision, if viewed from the law in book aspect, is indeed the best choice. This is based on the following reasons. First, the Constitutional Court was formed to protect the purity of the Constitution with a more detailed interpretation. This interpretation will be used as a basis for resolving problems by certain authorities who are given direct authority by the Constitution. Therefore, it is appropriate that the interpretation is only carried out once, which is binding so that the decision must be placed at the first and final level where no effort can be made to cancel it. Second, apart from that, it must also be understood that the constitutional court as a constitutional court can resolve problems and provide legal certainty quickly by the principles of fast and simple justice.
REGULATING FOOD WASTE MANAGEMENT IN INDONESIA: DO WE NEED AN OMNIBUS LAW (AGAIN)? Satyawati, Ni Gusti Ayu Dyah; Suyatna, I Nyoman; Gede Arya Sumerta Yasa, Putu; Palguna, I Dewa Gede; Rajaratnam, Nadeeka
Indonesia Law Review Vol. 14, No. 1
Publisher : UI Scholars Hub

Show Abstract | Download Original | Original Source | Check in Google Scholar

Abstract

Indonesia was regarded to be the world's second-largest food loss and waste-producing country. Food waste contributes the most significant amount in Indonesia compared to other types of waste. This paper aims to discuss three legal issues. First, it identifies, in descriptive-normative means, the legal framework regulating food waste, which is the intersection of two legal regimes: 'the food management' and 'the waste and environmental management”. Second, it presents a comparative study by exploring the more advanced food waste legal frameworks, which take examples from Europe. The third objective is to recommend legal, institutional, and policy steps to mainstream food waste management in Indonesia. This paper suggests that statutory regulations have indicated an initial concern about food waste; however, they do not provide a strict mandatory obligation to relevant stakeholders. Indonesia may use Europe’s remarkable achievements as lessons learned in initiating a comprehensive legal framework for food waste in the future. This paper, therefore, proposes a Law on Sustainable Food System as an ius constituendum to figure out a comprehensive solution for combining food management and environmental sustainability needs. In terms of legislative drafting, an omnibus law seemed suitable for drafting such a law, which crosses different legal regimes, and the existing provisions are spread in various regulations.
Co-Authors Alan Kusuma Dinakara Amelia Febrina Merry Bogia Anak Agung Gede Duwira Hadi Santosa ANAK AGUNG SRI UTARI Andriwinata, Rackel Bagja, Rahmat Bisariyadi Bisariyadi Claudia Samantha Rico Dananjaya, I Komang Ezzerouali, Souad Ahmed Gede Afriliana Saputra Gede Arya Sumerta Yasa, Putu Halmadiningrat, I Made I Dewa Gede Adi Sanjaya I Gede Adhi Supradnyana I Gede Pasek Pramana I Gede Putra Ariana I Gede Tommy Guntara I Gusti Ayu Agung Ariani I Gusti Ngurah Parikesit Widiatedja I Kadek Oka Wijaya I Made Budi Arsika I Made Pria Dharsana, I Made Pria I MADE SUBAWA I Nyoman Suyatna I Putu Sabda Wibawa Indrasari Kresnadjaja Indrasari Kresnadjaja Ketut Gede Sonny Wibawa Khairul Fahmi Made Hendra Wijaya Made Maharta Yasa Made Suksma Prijandhini Devi Salain Ni Gusti Ayu Dyah Satyawati Ni Luh Gede Astariyani Ni Nengah Adiyaryani Nurjanah, Ita Padmawati, Ni Komang Tari Rackel Andriwinata Rajaratnam, Nadeeka Risa Sandhi Surya Sakti Prasetiya Dharmapati Saldi Isra Suandika, I Nyoman Sugi Hartono, I Made Sumadi, I Putu Sudarma Veronika Puteri Kangagung Wenies Ema Sinaga Windusadu Anantaya Yohanes Usfunan