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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 20 Documents

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Search results for , issue "Vol 11, No 1 (2014)" : 20 Documents clear

Konstruksi Pertentangan Norma Hukum dalam Skema Pengujian Undang-Undang Lailam, Tanto
Jurnal Konstitusi Vol 11, No 1 (2014)
Publisher : Mahkamah Konstitusi Republik Indonesia

The study elaborated on the construction of “conflict of legal norms” in constitutional review scheme. There are eleven problems as result of this study, which include: The ideology of the state “Pancasila” as a standard review of “conflict of legal norms” act against 1945 constitution; Constitutional court has a review of act passed before and after 1945 Constitution amendment with standard of 1945 constitution; 1945 constitution is “the living constitution” for the enforcing of law and justice; Constitutional court has authority to review of act against 1945 constitution by vertical and horizontal perspective; enforceability aspect of constitutional review is a part of material review, not formal review; the meaning of “conflict of legal norms” must be comprehend elaborated in the decisions to enforcing of law and justice; Constitutional Court does not used priority of the original intent interpretation and remained unfulfilled of other model interpretation if original intent interpretation caused ineffectiveness of constitution; non constitution be permitted for the formal review, but in material review is not implement; “nemo judex idoneus in propria causa” of procedural law principle can remained unfulfilled by “ius curia novit” principle to promote of the 1945 constitution; the formal review of “conflict of legal norms” can remained unfulfilled by utility principle to priority of legal substance; the retroactive decision caused legal uncertainly.

Pengakuan Hak Konstitusional Pengelolaan Sumber Daya Industri Ekstraktif dalam Mewujudkan Kesejahteraan Rakyat Husna TR, Cut Asmaul
Jurnal Konstitusi Vol 11, No 1 (2014)
Publisher : Mahkamah Konstitusi Republik Indonesia

Resource management, extractive industries have a significant role to state revenues. Extractive industries sector in Indonesia is a very closed industry sectors primarily on revenues derived from state income Cooperation Contract (KKS). Resource management paradigm for the extractive industries exploited only to pursue exchange of reliance State Budget (Budget) by denying the maximum prosperity for the people. Globalization can not be avoided has affected the existence of Law No. 22 of 2001 on Oil and Gas value-laden liberal-capitalistic. Consequently, there has been a paradigm shift in both the PSC and the people of the country to the tyranny of capital resulted in the country and people can not renegotiate the contract. Therefore, reform of the legal arrangements in the extractive industries absolutely must be done in order to realize the people’s welfare. Urgency juridical formation of the Draft Law on Amendments of Law No. 22 of 2001, based on the decision of the Constitutional Court Case No. 002/PUU-I/2003 and Decision No. 36/PUU-X/2012. Just and prosperous society, as a goal, requires the struggle to create the basics, which is referred to as the national interests of the Indonesian people. All efforts and actions to ensure the implementation of state remains fixed on the terminus ad quem, just and prosperous society.

Putusan Ultra Petita Mahkamah Konstitusi Rubaie, Ach.; Nurjaya, Nyoman; Ridwan, Moh.; Istislam, Istislam
Jurnal Konstitusi Vol 11, No 1 (2014)
Publisher : Mahkamah Konstitusi Republik Indonesia

Basic considerations of the Constitutional Court made ultra petita verdict was:(a) philosophical reasons in order to enforce substantive justice and constitutional justice as embodied in the Constitution NRI 1945, (b) theoretical grounds related to the authority of the judge to explore, discover and follow the legal values that live in the community, if the law does not exist or insufficient legal anymore (outdated), and (c) juridical reasons relating to the provision of Article 24 paragraph (1) NRI 1945 Constitution and Article 45 paragraph (1) of Law no. 24 year 2003 on the Constitutional Court, that Court as organizers aim to enforce the judicial justice according to law and the evidence and the judge's conviction. The verdict the Constitutional Court which is ultra petita basically acceptable, all associated to the subject of the request and based on considerations which can be accounted for philosophical (ie, contains the values of justice, morality, ethics, religion, principle, doctrine). The authority to make ultra petita verdict for the Constitutional Court can only be given if there is vagueness of legal norms (vague normen) through the method of interpretation of the law, or if a legal vacuum (rechts-vacuum) through the creation of legal methods (rechtschepping). But considering the legal interpretation and legal formation are highly subjective, hence in order to prevent abuse of power, the Constitutional Court issued a verdict ultra petita, should be limited by the principles of a democratic state of law, the principles of fair trial and impartial, and general principles of good governance.

Corporate Social Responsibility: A Constitutional Perspective Ali Safa’at, Muchamad
Jurnal Konstitusi Vol 11, No 1 (2014)
Publisher : Mahkamah Konstitusi Republik Indonesia

Originally, the concept of CSR was come from business ethic values that impose corporation’s ethical responsibly to their social and natural environment. That development of ethical business was part of social consciousness on the degradation of environment as impact of corporation activities. This reality also raised the deep environmental ethic or deep ecology which challenge anthropocentrism economical development and urged ecocentrism development. In Indonesia, this phenomenon was marked by the enactment of Act 4/1982 on Environmental Management.The constitutional debate on CSR just began when the Indonesian Constitutional Court heard and decided the judicial review case of Act 40/2007 on Limited Liability Company which stipulate CSR mandatory law for corporation that have activity in natural resources areas. In its decision, Constitutional Court refused the petition. This means that the court affirmed that CSR mandatory law is not contrary to the Constitution. However, the legal argumentation of the court was not shifted from economical and environmental perspectives. The constitutional basis of the decision is Article 33 (4) concerning national economic principles and Article 33 (3) concerning state power on land, water, and natural resources. The Constitutional Court did not use the human rights concept as the source of CSR mandatory law.In constitutional law perspective, we can justify the CSR mandatory law from human rights guarantee on the constitution. CSR is one of the obligations to respect, to protect, to fulfill, and to promote human rights. Those obligations are not only bind over the government, but also corporation and all citizens. In that perspective, CSR should be mandatory law not only for the corporation which manage or correlate with natural resource, but for all corporations that operate in the middle of the society.

Konstitusionalitas Hak Masyarakat Hukum Adat dalam Mengelola Hutan Adat: Fakta Empiris Legalisasi Perizinan Nugroho, Wahyu
Jurnal Konstitusi Vol 11, No 1 (2014)
Publisher : Mahkamah Konstitusi Republik Indonesia

Green constitution placed Indonesia as a country that has a constitutional juridical consequences constitution in 1945 to apply the principles of ecocracy, that is any wisdom or development in the field of economy always looking environment in all sectors, including forestry. The study object is the Constitution Court decision No. 35/PUU-X/2012 with indigenous people’s subject who has violated his constitutional rights. The purpose of this study are: first, to examine and analyze the consistency of state authority over the doctrine of welfare state in the management of state forest with indigenous authorities in the indigenous forest management based on socio-legal study of the Constitutional Court’s decision, and second, guarantees and analyze the implementation of the principles ecocracy over strengthening the constitutional rights of indigenous people as a living law in the management of indigenous forest, as a logical consequence of Indonesia adherents of democracy based on the environment and green constitution. The author uses a methodology based on assessment of the Constitutional Court decision, by examining the socio- legal aspects of this decision. The results of this study revealed that first, there is a relationship between the state is the state forest, and the state is customary forests. To the state forest, the state has full authority to organize and decide the inventory, allocation, utilization, management, and legal relations that occur in the forest region of the country. The indigenous forests, state authority is limited extent authorized content covered in indigenous forest. Indigenous forest management rights of indigenous communities, but if the development of indigenous communities in question no longer exists, then the rights of indigenous forest management falls to the Government. Second, implementation of national and regional development has always prioritized economic element or in the context of regional autonomy prefers the original income, regardless of environmental democracy based on sustainable development and environmentally.

Mahkamah Konstitusi sebagai Human Rights Court Kurnia, Titon Slamet
Jurnal Konstitusi Vol 11, No 1 (2014)
Publisher : Mahkamah Konstitusi Republik Indonesia

MKRI is a new governmental body which was established under the Third Amendment of the UUD NRI 1945. This article examines its proper function which underlies its jurisdiction to review the constitutionality of legislation. According to the issue, this article argues that MKRI should be treated as a human rights court whenever it undertakes its jurisdiction to review the constitutionality of legislation. The function of the MKRI as a human rights court justifies its existence and also prescribes principles for its operation. It means that in reviewing the constitutionality of legislation the MKRI should enhance the protection of human rights through its judicial policy and constitutional interpretation.

Prinsip Tanggung Jawab Orangtua Biologis terhadap Anak Di Luar Perkawinan Usman, Rachmadi
Jurnal Konstitusi Vol 11, No 1 (2014)
Publisher : Mahkamah Konstitusi Republik Indonesia

Every children should get law protection, also children who born from unmarried parent. If it is not, that children be a victim, whereas they was born in holy condition without any mistakes, even they was born as a adultery action. The children who born from unmarried parents often get discrimination and stereotype in society. Because that, toward give protection for children who born from unmarried parents and obligate the father to responsible, Constitutional Court decide provision Article 43 paragraph (1) Act Number 1 of 1974 concerning Marriage is against Constitution of 1945 conditionally, unconstitutional as long as that provision interpretation omit private/civil relation between the man who proved by science and technology and/or other evidence by Law have relationship with their father, and then every children who born from unmarried parents have private/ civil relation not only with their mother and her family, but also with their father and his family. This decision rise change of meaning and law definition concerning children who born from unmarried parent, include children from adultery couple, as long as can prove by law they have relationship with the man as father also have private/ civil relation with their father and his family. But in other side, Constitutional Court also rise parent (father) biologic principle against children, include children who born from unmarried parent.

Karakteristik Sengketa Pemilukada Di Indonesia Evaluasi 5 Tahun Kewenangan MK Memutus Sengketa Pemilukada Rudy, Rudy; Purba, Charlyna
Jurnal Konstitusi Vol 11, No 1 (2014)
Publisher : Mahkamah Konstitusi Republik Indonesia

This study purports to ascertain the characteristic of the local election disputes in Indonesia by way case study through judgment reviews from 2008 to 2013. The research shows that the characteristic of the local election disputes in Indonesia can be classified as structured, systematic, masive, administrative, and substantive. The disputes of local election has been contributed by both the candidates and organizingelectionsof local eletion.

Hak Menolak Wajib Militer: Catatan atas RUU Komponen Cadangan Pertahanan Negara Simamora, Robby
Jurnal Konstitusi Vol 11, No 1 (2014)
Publisher : Mahkamah Konstitusi Republik Indonesia

The military service agenda proposed Components of the National Defense Bill sows controversy. The absence of protection of citizens who exercised their right of conscientious objection to military service could potentially lead to violations of human rights if the military service must be implemented as it happens in other countries. Guarantee the protection of conscientious objection as part of the civil and political rights is a necessity if the government want to impose military service, considering Indonesia had acknowledged the existence of conscientious objector in the history of its military service policy.

Aspek Keadilan dalam Sifat Final Putusan Mahkamah Konstitusi Soeroso, Fajar Laksono
Jurnal Konstitusi Vol 11, No 1 (2014)
Publisher : Mahkamah Konstitusi Republik Indonesia

The final nature of the Constitutional Court’s decisions is often questioned. The main problem, among others, when the justice seekers of Constitutional Court, there is nothing else to do but to accept and implement the Court’s decision although shackled and deprived of justice by the Constitutional Court. This paper confirms the absence of the issue of the fairness aspect of the Constitutional Court when the justice seekers recognize and understand at least three (3) terms, namely (1) the nature of the final position is attached to the nature of the Constitution as the supreme law so that there is no other commandment greater height of it is an effort to keep constitutional judicial authority and legal certainty; (2) the nature of the final decision of the Constitutional Court is an attempt to preserve the constitutional authority of the courts so different from the general court; and (3) possibility Constitutional Court contains the error persists considering Constitutional Court Judges are human beings, but until now, there is no better alternative replaces the final nature of the Decision.

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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