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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 10 Documents

Search results for , issue " Vol 12, No 4 (2015)" : 10 Documents clear

Konstitusionalitas Norma Sanksi Pidana sebagai Ultimum Remedium dalam Pembentukan Perundang-undangan Anindyajati, Titis; Rachman, Irfan Nur; Onita, Anak Agung Dian
Jurnal Konstitusi Vol 12, No 4 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

Intentionally, criminal sanction was seen as an effective solution for the problem of crimes. On the other hand, criminal sanctions also pose as an implementation of state responsibility in maintaining public security, order and legal protection of its citizens. In the development of Indonesian legal system, most of the laws enacted by the state have included criminal sanction in its substance. Therefore, there is a shift in the political law (legal policy) regarding the application of criminal sanctions, which intentionally pose as a last resort (ultimum remedium) has shifted towards first resort (primum remedium). The inclusion of criminal sanctions in the legislation as primum remedium might result on the violation of the constitutional rights of Indonesian citizens. In addition, there is an emergence of numbers in applications of judicial review on the laws regarding the criminal sanctions issues. This research focuses to examine and determine about the position of criminal sanction norms in the law and about the deliberation and reasoning of the Constitutional Court in reconstructing the structure of criminal sanctions in law from primum remedium toward ultimum remedium. The research showed that most of the laws enacted from 2003 through 2014 have adapted the norms of criminal sanctions as primum remedium. This can be seen in the construction of the criminal forfeiture clause, where in the contrary, the concept of punishment states that criminal sanctions should be positioned as ultimum remedium. In the meantime, the Constitutional Court as the protector of citizens’ constitutional rights and protection of human rights has a very important role in restoring the position of criminal sanctions as ultimum remedium. This, by example, was set forth in the Constitutional Court decision 4/PUU-V/2007 on June 19, 2007 regarding the review of Law No.29/2004 on the Medical Practices.

Hukum dan Keadilan Sosial dalam Perspektif Hukum Ketatanegaraan Sumadi, Ahmad Fadlil
Jurnal Konstitusi Vol 12, No 4 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

Law in this discussion is the law that is deliberately formed (by designed) by the state, not the law that occurs naturally in the society, which constitute the crystallization of human interaction within the society as the subject of law. Law is known as the common law or customary law and the second is the religious law, in particular, Islam with its Islamic law. The process of formation of common law or customary law is from the bottom upward (bottom-up process) while the establishment of islamic law is from top to bottom (top-down). The same as the nature of the process of formation of Islamic law is the in question in this discussion, which is the law called state legislation, or which is also usually known as laws and regulations. The only difference is, Islamic law is made by God, Allah SWT, while the maker of statutory laws is a state institution of which the major function is to make laws (legislative power). Legislation is interrelated to with humanity and justice, both in the establishment, implementation, and enforcement. This can be proven by tracing since the establishment of the state, particularly Indonesia, because the law is one of the implementation of state functions. State is established on the basis of motivation associated with humanity and justice, so that the objectives and the foundations are also related to humanity and justice. The State and the law is an instrument of humanity and justice, therefore, state and law must be related to humanity and justice, and thus, also would not be enough in the instrumental perspective, the state and the law itself without humanity and justice in serving the society.

Transparansi dan Partisipasi Publik dalam Rekrutmen Calon Hakim Konstitusi Wijayanti, Winda; Quraini M, Nuzul; Putri R, Siswantana
Jurnal Konstitusi Vol 12, No 4 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

Recruitment is not an arena of “hazing” and the addition of bureaucracy but a forum to explore the nature of integrity, capability, and independence of the candidates for constitutional judges. The process of recruiting candidates for constitutional judges to choose the recruitment system based on the principle of transparency, participatory, objective, and accountability to the people of the early stages and mechanisms of recruitment until the determination of the constitutional judges candidates that can lead to public confidence and form of democracy because of the position of the control and balance between state with people. Thus, the recruitment process needs to be accompanied by a written rule that can evolve as needed to create the best candidates for constitutional judges based recruitment process by filing recruitment agency and SOP (Standard Operational of Procedure). The problem is not on the persons making the recruitment, agency nominate candidates for judge, and the lack of setting the terms of the constitutional judge best candidate, but the choice of constitutional judges are recruited to promote open to the public process. DPR as one of the agency of the state to file a constitutional justice through the recruitment team can choose the right man in the right position through the selection of recruitment mechanism in accordance with the constitutional.

Implikasi Putusan Mahkamah Konstitusi Nomor 93/PUU-X/2012 Bagi Penyelesaian Sengketa Bisnis dan Keuangan Syariah Umam, Khotibul
Jurnal Konstitusi Vol 12, No 4 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

The Decision of Constitutional Court No. 93/PUU-X/2012 regarding Judicial Review of Law No. 21/2008 regarding Sharia Banking with the Indonesian Constitution 1945 was giving a strong statement that the explanation of this a quolawhas a potential impact to arise legal uncertainty and legal confuse, meanwhile Article 55 in the whole still conform with the Constitution. The juridical implication from this a quodecision, i.e. The tribunal of District Court have to state if they have no authority to settle the case in sharia banking, althought it has been agreed in an akad (agreement). It has been stressed with the nature of Constitutional Court Decision “final and binding” and also bind all of citizens (erga omnes). Then, the opportunity to implement of its decision to sharia businees and financial institutions exist based on analogy, esp argumentum a fortiory. The expectation, it will give legal certainty in the context of Judicial that has an authority to settle the potential dispute between customer and sharia business and financial institutions.

Hak Asasi Perempuan dalam Peraturan Perundang-Undangan Di Indonesia Kania, Dede
Jurnal Konstitusi Vol 12, No 4 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

Up to now, the law is still considered discriminatory and gender inequality. Though the law should be equal or sensitive to gender inequality to guarantee women’s rights. By following the principle of equality in all areas of the good men and women have equal rights or opportunities to participate in every aspect of social life and state. so if there is discrimination against women, it is a violation of women’s rights. women’s rights violations occur due to many things, including the result of the legal system, where women are victims of the system. Reform Order is the most progressive period in the protection of human rights. Various laws and regulations come outin this period, including laws and regulations concerning women’s rights. Seen from the government’s efforts to eliminate discrimination based on sex are included in many legislations.

Ketidakpastian Hukum Kewenangan Lembaga Pembentuk Undang-Undang Akibat Pengabaian Putusan Mahkamah Konstitusi Widiarto, Aan Eko
Jurnal Konstitusi Vol 12, No 4 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

The Indonesian House of Representatives and the President has established the Act Num. 17 Year 2014 on MPR, DPR, DPD, and the DPRD (Act MD3). The Act consists provisions that have been declared incompatible with the Constitution 1945 and does not have binding legal force by the Constitutional Court Decision Num. 92/PUU-X/2012. The result is a duality norm. The first norm is the norm authorizes the establishment of laws that have already been decided in the judgment of the Constitutional Court No. 92/PUU-X/2012. The second norm is the new norm about authority of making laws specified in the Act MD3. Both of norms are contrary, so in the implementation (rechtstoepassing), House of Representatives, and the President is faced with two choices provisions of legislation. DPD authority in making the draft law becomes blurred. Similarly for the House of Representatives and the President also no certainty authority in relationship with DPD in the act making process. Should the House of Representatives and the President uphold the principle of self respect or self obidence (the government should respect the decisions of the judiciary).

Konstruksi Yuridis Politik Legislasi DPD Pasca Putusan Mahkamah Konstitusi Nomor 92/PUU-X/2012 Arrsa, Ria Casmi
Jurnal Konstitusi Vol 12, No 4 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

The position of Regional Representative Council in the context of the implementation of the legislative function has an important role in order to create the principle of checks and balances between state institutions which include the House of Representatives and the President. Contextually Constitutional Court Decision No. 92/PUU-X/2012 reinforce the DPD position both in terms of national legislation program planning, delivery of opinions, views, list of inventory issues, and discussion of a draft law. Much progress has been achieved but in the political realm seems legislative authority of the DPD is still not perfect when not reached the stage of deciding to join a draft law being discussed. In order to strengthen DPD as part of regional representation, the amendments to the Constitution of 1945 was important to conduct state institutional arrangement holistically and comprehensively.

Faktor-Faktor yang Menyebabkan Materi Muatan Undang-Undang Bertentangan Dengan UUD 1945 Samosir, Daniel
Jurnal Konstitusi Vol 12, No 4 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

In the term of office of the legislators 2004/2009 period, a lot of the Bills which passed into legislation were not in favour of the people. Because of that, those Bills became prejudice to the society due to the lack of conformation to what the people aspired to in the constitution (UUD 1945) which is the source and basis for the establishment of the legislation. Therefore, many legislation were tested with judicialreview by the constitutional court on the application of the public. Based on this judical review and the usage of normative research by the author, it is found that substances of the legislation are contrary to the constitution (UUD 1945). Because the legislation specified in the list of Prolegnas made by the parlement (DPR) and the President has not fully used clear, precise and consistent criteria. Therefore, the legislation established by parlement 2004/2009 period do not meet the principles of the establishment of the legislation according to the act Number 12 Year 2011 on the establishment of the legislation.

Pro-Kontra Kewenangan Mahkamah Konstitusi dalam Menguji Undang-Undang yang Mengatur Eksistensinya Lailam, Tanto
Jurnal Konstitusi Vol 12, No 4 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

The Pro’s – Con’s of the Constitutional Court in the review of law in a regulated of the authority, since, it was a conflicting of procedural principles between “ius curia novit” with “nemo judex idoneus in propria causa”. Morever, the background by implication of Constitutional Court decisions, sometimes Constitutional Court making a “rule breaking”, for examples: nullify of some of law if had reduction of the authority, addition of constitutional authority to review of law before the 1945 Constitution amendment, additional authority to review of Government Regulation in lieu of law, and used non-constitution as a standard in the formal review, and others. On the other hand, the Constitutional Court also sometimes to choose a legal logic doesn’t precise and anti-accountability principle. The Conflicts of the procedural principles can be resolved by understanding philosophy of purposes of law (justice value, legal certainly, utility principle), so that, the Court will have been prioritizing to “ius curia novit” principle and it ignored “nemo judex idoneus in propria causa”principle, it is intended that the enforcement of the constitution (values) and the state of the Indonesian rule of law, as well as for the Court to aims decided of constitutional issues and to aim the protection of constitutional rights.

Dinamika Hubungan Antara Pengujian Undang-Undang dengan Pembentukan Undang-Undang Utomo, Nurrahman Aji
Jurnal Konstitusi Vol 12, No 4 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

The development and implementation of a relationship leading to the birth of anomalous friction decision Judicial review to collide against the lawmaking function. The absence of a follow-up mechanism to cancel the decision of the norm, led to the birth anomaly judgment. Friction Judicial Review with Law making Function was born in the form of vague and superficial to the lack of follow-up mechanisms. Efforts to reduce the friction between the two of them was done to achieve the ideal relationship between judicial review with lawmaking function.

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Contact Name
-

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Journal Mail Official
jurnalkonstitusi@mkri.id

Editorial Address
Jl. Medan Merdeka Barat No. 6. Jakarta 10110

Location
Kota adm. jakarta pusat,

Dki jakarta

INDONESIA