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Costantinus Fatlolon
Sekolah Tinggi Pendidikan Agama Katolik Santo Yohanes Penginjil
Humanities Law, Crime, Criminology & Criminal Justice Other

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Evaluasi Proses Amendemen Undang-Undang Dasar Tahun 1945: Perspektif Habermasian Costantinus Fatlolon
Jurnal Konstitusi Vol. 19 No. 4 (2022)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1944

Abstract

This article evaluates the amendment process of the 1945 Constitution conducted by the MPR from 1999 to 2002. The theoretical framework used is Jürgen Habermas’s theory of law and democracy. By employing an expositive-critical-reconstructive approach, this article argues the amendment of the 1945 Constitution was inclusive but not participatory because the process was more dominated by the MPR and it did not include the active participation of ordinary citizens, including civil society groups, the mass media, and radical groups in the society. The remedy to this problem is for the MPR to institutionalize ideal conditions of deliberative democracy that grant publicity, transparency, civic participation, and rational communication between the executive body and citizens in every phase of the constitutional amendment process.
Evaluasi Proses Amendemen Undang-Undang Dasar Tahun 1945: Perspektif Habermasian Costantinus Fatlolon
Jurnal Konstitusi Vol 19, No 4 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (376.883 KB) | DOI: 10.31078/jk1944

Abstract

This article evaluates the amendment process of the 1945 Constitution conducted by the MPR from 1999 to 2002. The theoretical framework used is Jürgen Habermas’s theory of law and democracy. By employing an expositive-critical-reconstructive approach, this article argues the amendment of the 1945 Constitution was inclusive but not participatory because the process was more dominated by the MPR and it did not include the active participation of ordinary citizens, including civil society groups, the mass media, and radical groups in the society. The remedy to this problem is for the MPR to institutionalize ideal conditions of deliberative democracy that grant publicity, transparency, civic participation, and rational communication between the executive body and citizens in every phase of the constitutional amendment process.
Activating Unconstitutional Norms in Law: An Analysis of the Principle of Checks and Balances: Menghidupkan Norma Inkonstitusional dalam Undang-Undang: Suatu Analisis Prinsip Checks and Balances Costantinus Fatlolon
Jurnal Konstitusi Vol. 20 No. 2 (2023)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk2027

Abstract

The existence of norms in the law that have been declared unconstitutional by the Constitutional Court, but re-included in the process of forming laws, can cause harm to the rights of citizens that have been guaranteed by the 1945 Constitution, especially if they are placed in the concept of checks and balances. This study has two objectives, namely, first, to analyze the concept of checks and balances and examples of norms that were canceled by the Constitutional Court but revived. Second, the implications of bringing unconstitutional norms to life. This research was conducted using normative juridical research. The results showed that the principle of checks and balances requires that legislative, executive, and judicial powers control each other. Some unconstitutional norms, but re-enacted, are spread through some statutes. The consequences if an unconstitutional article is reinserted into the law, it will threaten the system of checks and balances that have been agreed upon and affirmed in the 1945 NRI Constitution. In order to apply the principle of checks and balances, reviving an unconstitutional clause that has been overturned by the Constitutional Court must be rejected.
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