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All Journal Kertha Patrika Widya Yuridika Refleksi Hukum: Jurnal Ilmu Hukum
Kishan, Marcelino Ceasar
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Arts Humanities Law, Crime, Criminology & Criminal Justice Social Sciences

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Mahkamah Konstitusi Setengah-Hati: Final tetapi Tidak Mengikat dalam Kewenangan Pengujian Konstitusional Kishan, Marcelino Ceasar; Rauta, Umbu; Alves de Sousa, Freidelino Paixao Ramos
Widya Yuridika Vol 7, No 1 (2024): Widya Yuridika: Jurnal Hukum
Publisher : Universitas Widya Gama Malang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31328/wy.v7i1.4678

Abstract

This article aims to discuss the bindingness of constitutional review decisions of the Constitutional Court of the Republic of Indonesia (MKRI). In particular, this article looks at the relevance between the grand design of the nature of the MKRI decision in Article 24C paragraph (1) The 1945 Constitution of the Republic of Indonesia (UUD NRI 1945) with the practice of constitution disobedience. Based on that issue, this article argues that the MKRI is designed not to have a final and binding decision, but only final decisions. Because based on the Supremacy-of-Text Principle which is coherent with the concept of applying law based on regulations in the Rule of Law, the non-appreance of binding phrases in Article 24C paragraph (1) of the 1945 UUD NRI 1945 makes the decision of the Constitutional Court in the authority of constitutional review has no binding legal force. Grammatical argumentation comes from interpretation with original meaning and textualism methods which find that the word final does not mean binding due the two words stand separately. By drawing on the concepts of strong-form judicial review and weak-form judicial review, the non-binding nature of MKRI decisions can legitimize the disagreement. Because the indecisivenesss of the Constitution establish a half-hearted form of MKRI, namely the partial weak-form judicial review. Thus, the form of MKRI is a strong and weak-form judicial review that makes MKRI decisions can be opposed. This article uses normative research methods with conceptual approach, statutory approach, and comparative approach.
Ketidaklayakan Pembentukan Peraturan Pemerintah Pengganti Undang-Undang dengan Metode Omnibus Law Kishan, Marcelino Ceasar; Yanto, Oliviani; Jeconiah, Bernadeta Adriana Sandra
Kertha Patrika Vol 46 No 1 (2024)
Publisher : Fakultas Hukum Universitas Udayana

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24843/KP.2024.v46.i01.p01

Abstract

This article discusses the government’s acrobatics in forming the Government Regulation in Lieu of Law (as known as Perppu) using the omnibus law method which has caused controversy. The studied aspect is the feasibility of Perppu to be able to use the omnibus law method. Looking further, Law Number 13 of 2022 on the Second Amendment to Law Number 12 of 2011 on The Establishment of Laws and Regulations has restrained the use of omnibus law method in forming laws with the necessity to enact through planning documents. Based on the Legal Restraint perspective, this article is in a negative position to legitimize the use of the omnibus law method in Perppu. The rationalization is because Perppu was formed without using planning documents and it cannot take refuge in an emergency clause which obliges it to grant unlimited exceptions. The force to form Perppu using the omnibus law method is a form of a Constitutional Dictatorship that also in the process of enacting it has the potential to create constitutional chaos. In elaborating the legal issue, the research method used in this article is normative legal research with statutory approaches, conceptual approaches, comparative approaches, and historical approaches.
BATASAN YUDISIALISASI POLITIK OLEH MAHKAMAH KONSTITUSI: PARADOKS UNDANG-UNDANG PEMILIHAN UMUM Kishan, Marcelino Ceasar
Refleksi Hukum: Jurnal Ilmu Hukum Vol. 8 No. 2 (2024): Refleksi Hukum: Jurnal Ilmu Hukum
Publisher : Universitas Kristen Satya Wacana

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24246/jrh.2024.v8.i2.p203-224

Abstract

Abstract This paper aims to discuss the position of the Constitutional Court of the Republic of Indonesia in political judicialization. Judicialization of politics has become a critical issue because there is an intense debate on the choice of judicial restraint or judicial activism, particularly concerning its implications for the general election process. On this issue, this paper provides an alternative view related to the position of judicial restraint or judicial activism in a contextual manner, which departs from the limitation of the formation of General Election regulations that political judicialization must fill the legal vacuum caused by the finality of the General Election law which depends on delegated regulations. In adjudicating, the Constitutional Court of the Republic of Indonesia must perform policy calculations to determine how to correct the norms of the annulled General Election law.
Co-Authors Freidelino P. R. A. de Sousa Jeconiah, Bernadeta Adriana Sandra Umbu Rauta Yanto, Oliviani