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Jurnal Konstitusi

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Published by Mahkamah Konstitusi Republik Indonesia

ISSN : 18297706 EISSN : 25481657 DOI : 10.31078

Core Subject : Education, Social,

Law, Crime, Criminology & Criminal Justice Other

Jurnal Konstitusi merupakan media triwulanan guna penyebarluasan (diseminasi) hasil penelitian atau kajian konseptual tentang konstitusi dan putusan Mahkamah Konstitusi. Jurnal Konstitusi terbit empat nomor dalam setahun (Maret, Juni, September, dan Desember). Jurnal Konstitusi memuat hasil penelitian atau kajian konseptual (hasil pemikiran) tentang konstitusi, putusan Mahkamah Konstitusi serta isu-isu hukum konstitusi dan ketatanegaraan yang belum pernah dipublikasikan di media lain. Jurnal Konstitusi ditujukan untuk kalangan pakar, akademisi, praktisi, penyelenggara negara, LSM, serta pemerhati hukum konstitusi dan ketatanegaraan.

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Articles 8 Documents

Search results for , issue " Vol 10, No 4 (2013)" : 8 Documents clear

Problematika Substantif Perppu Nomor 1 Tahun 2013 Tentang Mahkamah Konstitusi Huda, Ni’matul
Jurnal Konstitusi Vol 10, No 4 (2013)
Publisher : Mahkamah Konstitusi Republik Indonesia

Constitutionally, the issuance of Government Regulation in Lieu of Law is the subjective right of the President based on the state of exigencies, but its formation should alway fulfill good, proportional and prudent principles of lawmaking. Eventhough the objective of issuing the Government Regulation in Lieu of Law on Constitutional Court is to restore public trust and credibility of Constitutional Court Justices, the content of the regulation may not be contradictional with the 1945 Constitution of the Republic of Indonesia. In order that there is no distortion in the use of subjective right of the President in issuing the regulation, the House of Representatives must objectively scrutinize whether the regulation is reasonable to be promulgated as a law ar must be denied.

Perppu Pengawasan Hakim Mk Versus Putusan Final Mk Malik, Malik
Jurnal Konstitusi Vol 10, No 4 (2013)
Publisher : Mahkamah Konstitusi Republik Indonesia

Government Regulation in Lieu of Law (Perppu) No. 1 of 2013 about the Second Amendment to Act No. 24 of 2003 about Constitutional Court (MK) is an appropriate step to recover public trust to MK after the arrest of non-active Head of MK Akil Mochtar by Corruption Eradication Commission (KPK). Many crucial things are found in Perppu No.1 of 2013 about MK and these are considered as the problem roots but also the efficacious herbs to deter against the replicated corruption practice at MK. One of them is the supervision system of Constitutional Justices. Justices of MK have been once becoming the object of the supervision of Judicial Commission (KY), but the release of the Verdict of Constitutional Court No. 005/PUU-IV/2006 has made the authority of KY to supervise Constitutional Justices degraded into inconstitutional. The verdict of Constitutional Court is final and binding, but it cannot still escape from erga omnes principle, meaning that the verdict is binding in general term and also binding for the object of dispute.

Pembelajaran Hukum Melalui Perppu Nomor 1 Tahun 2013 Toding, Adventus
Jurnal Konstitusi Vol 10, No 4 (2013)
Publisher : Mahkamah Konstitusi Republik Indonesia

Government regulation in lieu of law is regulation released by president subjectively in force majeur condition. The change of law through the regulation is an extraordinary in nature. An extraordinary change through the government regulation in lieu of law depict a condition which put aside the change of law in normal way. The quality of the government regulation in lieu of law can be measured from the content of the regulation either from the changes made or the addition of something new that has not existed. As a regulation which contains the substance of law, the presiden’s subjectivity must objectivized through the House of Representatives. The consequence is that the regulation must be accepted or unaccepted. If accepted, then the regulation will become law. The change of law through government regulation in lieu of law will increase the qualitiy of law because enforceability of the regulation is examined empirically by the House of Representatives. Otherwise, if not acepted, the regulation will not be enforceable and evrey provision contained therein will no longer have binding force of law. Thus, the former law will prevail.

Tumpang Tindih Kewenangan dalam Penyelesaian Sengketa Perbankan Syariah Jalil, Abdul
Jurnal Konstitusi Vol 10, No 4 (2013)
Publisher : Mahkamah Konstitusi Republik Indonesia

This paper is going to discuss the decision of the Constitutional Court No. 93/ PUU-X/2012 related to granting of the petition for judicial review of Law No. 21 Year 2008 concerning Islamic Banking (State Gazette of the Republic of Indonesia Year 2008 Number 94, namely Article 55 paragraph (2) and paragraph (3) governing the settlement of disputes with respect to Article 28D paragraph (1) of the 1945 Constitution, which says that the Act should guarantee legal certainty and justice and do not have binding legal force. While in Article 55 paragraph (1), described Sharia Banking Dispute resolution by the court within the Religious Courts, while paragraph (2), stated in terms of the parties’ dispute has betoken than those referred to in paragraph (1), the settlement of disputes in accordance with the contents of the Agreement, then, in paragraph (3) Settlement of disputes referred to in paragraph (2) must not conflict with Sharia. In addition to this, the paper will also question the extent of absolute authority of the Religious Courts institutions related to the settlement of economic disputes shari’a as stipulated in Law No. 3 of 2006 on Religious Courts .

Perubahan Makna Pasal 6A Ayat (2) UUD 1945 Firdinal, Ziffany
Jurnal Konstitusi Vol 10, No 4 (2013)
Publisher : Mahkamah Konstitusi Republik Indonesia

This article examines the changes in the meaning of Article 6A paragraph (2) of the Indonesian 1945 Constitution, related to the requirements for nominating Presidential and Vice Presidential candidates by a political party or an alliance of parties contesting in the parliamentary election prior to the Presidential election. Further provisions termed more precisely in Article 9 of Law No. 42 of 2008 on Presidential and Vice Presidential Election; some additional requirement that political parties or alliance of parties gain valid votes of at least 20% of total votes nationally or a minimum 25% of seats in the House of Representatives, which is conceptually known as ‘presidential threshold’. Based on the Constitutional Court Verdict No. 51-52-59/PUU-VI/2008, provisions on the candidacy at the Act level were declared constitutional with some terms, that there are some dissenting opinions among judges who adjudicated the constitutional norms during the judicial review of the Act. Examination results obtained is that there have been change in meaning, in this case, the change takes a form of narrowing of meaning of the normative provisions of Article 6A paragraph (2) in a consequence to the provisions set in Article 9 of Law No. 42 of 2008. In order to provide legal certainty associated to the narrowing of this provision’s meaning, an ammendment is required to Article 6A paragraph (2) to reinforce the measures in the Presidential and Vice Presidential candidate nomination, in this case whether it is in line with the Constitutional Court verdict on judicial review of Article 9 of Law No. 42 of 2008 on Election of President and Vice-President or not.

Model dan Implementasi Putusan Mahkamah Konstitusi dalam Pengujian Undang-Undang (Studi Putusan Tahun 2003-2012) Asy’ari, Syukri; Hilipito, Meyrinda Rahmawaty; Ali, Mohammad Mahrus
Jurnal Konstitusi Vol 10, No 4 (2013)
Publisher : Mahkamah Konstitusi Republik Indonesia

Research concerning model and implementation of Constitutional Court Verdicts in Judicial Review of Law against the 1945 Constitution constitutes juridical normative research using secondary data which is primary legal material namely Constitutional Court verdicts issued from 2003 until 2012. This research aimed at identifying decisions of which the dictum say it granted the petition submitted at the Court so that a comprehensive and integrative description of the model and implementation of Constitutional Court verdict can be found out. Article 56 Paragraph (3) and Article 57 Paragraph (1) of Law No. 24 Of 2003 as amended with Law No. 8 of 2011 on the Amendment of Law on Constitutional Court stipulate that in case a petition is granted, the Court will, at the same time, declares that a law is contradictory to the 1945 Constitution either wholly or partially and legally null and void since declard in an open court. This research found out that there are other models of verdict with their own characteristics. Condititonally constitutional and conditionally unconstitutional verdict is basically a model of decisions which do not legally nullify and declare a norm null but these two models contain interpretation of a content of a paragraph, an article and/or part of a law or the whole part of a law which is basically declared contradictory or not contradictory to the Constitution and still have the force of law or do not have the force of law. A limited constitutional model of verdict which postpone an enforcement of a decision which basically aims at providing some time for transition of the provision which has been declared contradictory to the constitution to remain in force until a certain time in the future. Another model of verdict is a decision which formulate a new norm in order to cope with the unconstitutionality of implementation of a norm. This new norm is temporary in nature and will be included in the new law or revision of related law. The implementation of Constitutional Court decision can be inferred from the model of the decisions. A self-executing force can generally be applied to a legally null and void model of verdict and a model of verdict which formulates new norms. Conditionally constitutional, conditionally unconstitutional and limited constitutional model of verdict is non self-executing. This models must go through legislation process either with revision of laws or making of new laws and regulation process for the ordinances made under any acts.

Implikasi dan Implementasi Putusan Mahkamah Konstitusi Nomor 5/Puu-X/2012 tentang SbI atau RSbI Laksono, Fajar; Wijayanti, Winda; Triningsih, Anna; Mardiya, Nuzul Qur’aini
Jurnal Konstitusi Vol 10, No 4 (2013)
Publisher : Mahkamah Konstitusi Republik Indonesia

Constitutional Court Decision No. 5/PUU-X/2012 is very important and interesting to be studied because due to its implications and implementation. Ministry of Education and Culture as the addressat of the decision make transitional policy regarding on how to eliminate the policy concenring International Standard School/ International-Standard School Pilot Project (SBI/RSBI). In fact, transitional policy is not addressed and does not have a legal basis in the implementation of the decision. There is a conflict between the normative provisions that Constitutional Court Decision are binding since pronounced in an open session for the public with the certainty of cross-state agency collaborative cooperation to implement the Court Decision. Therefore, there’s a need to investigate this Decision at the practical leve on how the decision is implemented. This research is doctrinal in which the object of the research is laws and regulations and other legal materials, in this case, the Constitutional Court Decision No. 5/PUU-X/2012. In addition, field studies are also conducted by way of searching mass media news which is important to be done in order to know the response of the public on how to implement the Constitutional Court Decision No. 5/PUU-X/2012. The results showed that (1) the implications of the Constitutional Court Decision No. 5/PUU-X/2012 is that it eliminates the legal basis of RSBI policy. Consequently , the implementation of SBI/ RSBI should be stopped because it has lost its legal basis since the judgment is pronounced. In addition, the Government through the Ministry of Education and Culture, shall implement the decision, including to repeal or revise the technical regulations that become legal framework of RSBI, (2) The implementation of the Constitutional Court Decision No. 5/PUU-X/2012 can be seen in two categories, namely: (a) spontaneous implementation, which is implementation by some education authorities and the schools themselves by removing the attributes of SBI/RSBI shortly after the Constitutional Court’s decision was pronounced, without waiting for further instruction by Ministry of Education and Culture, and (b) a structured implementation through the Ministry of Education and Culture by issuing Circular of Minister of Education and Culture No. 017/MPK/SE/2013 about RSBI Transition Policy. Although this policy is contrary to normative-imperative provisions, the measure taken by the Ministry of Education and Culture to establish a transition policy is the most probable step taken in order that the Constitutional Court Decision No. 5/PUU-X/2012 can be implemented as it should be.

Kedudukan Istri dalam Pembagian Harta Bersama Akibat Putusnya Perkawinan Karena Perceraian Terkait Kerahasiaan Bank Wijayanti, Winda
Jurnal Konstitusi Vol 10, No 4 (2013)
Publisher : Mahkamah Konstitusi Republik Indonesia

Marriage is something sacred, must be respected, the eternality of which must be protected and conducted jointly between a man and a woman as husband and wife so as to achieve a common goal. However, in reality, lots of marriages end with divorce and is considered as the best way for both partners. When a divorce occurs women is always in a weak position including in the divison of marital property if one party does not have a good faith. Bank as the depository institution maintains the confidentiality of depositors and their deposit which is on the one hand beneficial for depositors since information related to depositors and their deposit can be kept confidential, but on the other hand, it is disadvantageous to interested parties that is a wife who does not know the amount of funds deposited in her husband’s name in a bank which is a marital property of husband and wife acquired during their marriage. Thus, the wife’s constitutional rights to protection of property under his control and property rights in accordance with Article 28G paragraph (1) and Article 28H Paragraph (4) of the 1945 Constitution is not protected. The Constitutional Court as the guardian of the constitution has the authority to examine, try and decide the case of judicial review of Law No. 1 of 1974 on Marriage (Marriage Act) and declare the law conditionally constitutional in the case of bank confidentiality regarding information related to depositors and their deposit to the interests of justice in a civil case concerning the division of maritall property due to divorce.

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Journal Mail Official
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Kota adm. jakarta pusat,

Dki jakarta

INDONESIA