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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 18, No 2 (2021)" : 10 Documents clear

Implementasi Tax on Food dalam Tanggung Jawab Negara Terhadap Hak Pangan Berdasarkan Putusan Mahkamah Konstitusi 39/PUU-XIV/2016 Intan Permata Putri; Rima Yuwana Yustikaningrum; Ananthia Ayu Devitasari
Jurnal Konstitusi Vol 18, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

After the Constitutional Court decision number 39/PUU-XIV/2016 concerning the Judicial Review of the Value Added Tax on Goods and Services and Sales Tax on Luxury Goods with problems related to the criteria for 11 types of food commodities not subject to Value Added Tax (VAT). However, in the a quo decision, the court expanded the meaning of 11 food commodities so that not only 11 commodities were not subject to VAT. This decision is important because it laid the foundation for guaranteeing the right to food which is the responsibility of the state. The problem is how Constitutional Court decision No. 39/PUU-XIV/2016 is implemented on the application of VAT on food commodities? How is the application of taxes on food commodities in various countries? This article is normative legal research using a conceptual approach and a comparative approach. The reference used in this article include decisions, books, journals, reports, and other references related to the issue of the right to food and the imposition of VAT on food commodities. This article concludes that first, after the Constitutional Court Decision, the Government issued the Minister of Finance Regulation No. 99/PMK.010/2020 which adds to the criteria for necessities to be 14 items. However, these criteria must constantly be evaluated and updated according to the dynamics of social, economic, nutritional, ecological, and other supporting variables; second, the tax imposed on food (tax on food) has been applied to several countries such as Denmark; Finland; Hungary; France. The amount of food that is subject to tax is of several types, such as alcohol, tobacco, foods high in sugar, salt, and saturated fat. The goal is to develop a healthy lifestyle in the community. However, none of the countries that have implemented a tax on food have included basic commodities as tax objects. The application of staples as goods subject to VAT is of course not in line with the constitution and the concept of tax on food that has existed so far.

Proses Seleksi Hakim Konstitusi: Problematika dan Model Ke Depan Timbo Mangaranap Sirait
Jurnal Konstitusi Vol 18, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

The disparity in the selection mechanism of the Constitutional Court Judge has led to a trifurcation to the selection of constitutional judges carried out by the President, the House of Representatives, and the Supreme Court. The trifurcation of the Constitutional Court judge selection can not be separated from the construction of norms in the Constitutional Court Law which regulates the constitutional judge selection that have a high degree of flexibility so that they can be interpreted freely and suit the tastes of each regime by the institutions that have the constitutional authority to propose constitutional judge. The problem in this research is show to implementation of the selectionsystem of constitutional judgesin Indonesiais currently and how the model of selection of constitutional judges will be the future. The analysis will be carried out normatively using a statutory, historical and conceptual approach. The results of the study show that the redesign of the constitutional Court Judge selection is an urgent matter to establish the standards of the Constitutional Court judge selection valuation in a transparent, participatory, objective, and accountable manner. The recruitment and selection model for Constitutional Court judges that using a selection panel either by the respective Constitutional Judges Proposing institutions or by the form of an agreement of the respective constitutional judge proposing institutions is a legal reform that have a main goal which is to produce the constitutional court judges who have ideal integrity as a true statesman. The recruitment process using a clear and standard selection panel is a fulfillment of the main principles of the constitutional judge position filling mandated by the Constitutional Court Law.

Kebijakan Pembatasan Internet di Indonesia: Perspektif Negara Hukum, Hak Asasi Manusia, dan Kajian Perbandingan Rofi Wahanisa
Jurnal Konstitusi Vol 18, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

The rapid growth in internet use has led governments in various countries, including Indonesia, to implement “internet restriction policies” to offset the possibility of internet abuse. Such restrictions on the internet have caused polemics, especially regarding the rights to freedom of opinion and the right to communicate and seek or receive information. In this paper, the polemic will be explored further based on 3 (three) perspectives, among others: (1) the rule of law; (2) human rights; and (3) legal comparisons. This paper is written using the juridical-normative legal research method. The results of the analysis of this paper show that: (1) there are still unfulfilled principles of the rule of law in internet restrictions; (2) limitation of human rights in the limitation of “internet networks” by which do not have a legal basis; and (3) the expected characteristics of internet restrictions in the view of several countries, namely: a) there is a clear juridical basis; b) contains clear limitation procedures; c) inspection and supervision; d) there is an independent supervisor; e) there is a mechanism of protection, recovery, and rehabilitation for innocent parties.

Tinjauan Pengaturan Hukum Konservasi Sumber Daya Alam Hayati dalam Berbagai Putusan Mahkamah Konstitusi Luthfi Widagdo Eddyono
Jurnal Konstitusi Vol 18, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Law No. 5 Year 1990 on Conservation of Biological Resources and Ecosystem must be relevant and in harmony with regulation and Constitutional Court decisions. The issues of this article are : (1) How is the harmony between Law No. 5 Year 1990 on Conservation of Biological Resources and Ecosystem with other regulations ?; 2) how is the accordance between Law No. 5 Year 1990 on Conservation of Biological Resources and Ecosystem with Constitutional Court decisions? This is a normative research with conceptual and regulations approach. This article use secondary data with interactive model analysis. This research shows that : (1) Law No. 5 Year 1990 on Conservation of Biological Resources and Ecosystem has not considered Basic Agrarian Law and People’s Consultative Assembly No. IX/MPR/2001 as base of natural resources regulation. This regulation is neither according to other regulations nor responsive because this has not regulated modern biotechnology and genetic resources. (2) Law No. 5 Year 1990 on Conservation of Biological Resources and Ecosystem is not according to Constitutional Court Decision that emphasize on preventive aspect of natural resources management, protection and respect of indigenous people and substantive public participation. In another side, this regulation emphasize on curative aspect, irrespect and not protect indigenous people. This article recommends revision of this regulation and accord it with Constitutional Court Decision.

Independensi Komisi Pemberantasan Korupsi Pasca Undang-Undang Nomor 19 Tahun 2019 Mohammad Mahrus Ali; Zaka Firma Aditya; Abdul Basid Fuadi
Jurnal Konstitusi Vol 18, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Since its establishment, the Corruption Eradication Commission (Komisi Pemberantasan Korupsi-KPK) has been designed as a state independent agency. The purpose of granting independence to the KPK is to guard against influence by any power. The second revision of the KPK Law through Law Number 19 of 2019 contains fundamental changes to the KPK institution, namely: the establishment of the Supervisory Board, the placement of the KPK in the executive branch, employment status, and examiner or investigator status. The revision not only limits the authority of the KPK but also creates an impact on the independence of the KPK. The principles of independence of the KPK, as typical of state independent agencies and anti-corruption agencies have faded through the regulation of Law Number 19 of 2019. The implication is that the KPK has an increasingly limited latitude and is not independent of the influence of other powers, particularly the executive. Without repositioning the KPK institution, the agenda for eradicating corruption will become gradually uncertain. Without restoring its independence, the existence of the KPK is increasingly losing relevance, because the President is actually in the lead of two other corruption eradication law enforcement agencies, namely the police and the prosecutor’s office.

Overruling Mahkamah Konstitusi RI terkait Isu Korupsi Zaka Firma Aditya
Jurnal Konstitusi Vol 18, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Overruling is a revision of a court’s previous judicial precedent, meaning the court replaces the precedent with a new rule. This article sees that overruling is legitimate to seek constitutional truth. In practice, the Constitutional Court of the Republic of Indonesia (CCRI) has overruled its own Decisions through judicial review. This article focuses on the CCRI’s overruling on corruption issues which are the status of the Indonesian Corruption Eradication Commission and the meaning of the phrase “may harm State’s financial” which is stated in Law No. 31 of 1999. This article argues that those Decisions are consistent with constitutional truth although the ratio decidendi of the Court of the latter issue is inadequate. A case approach and a conceptual approach are used in the analysis of this legal research.

Prinsip Proporsionalitas dalam Putusan Mahkamah Konstitusi (Studi Perbandingan di Indonesia dan Jerman) Irene Angelita Rugian
Jurnal Konstitusi Vol 18, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

The judicial review of UUD 1945 is the authority of the Constitutional Court declared by Article 24C UUD NRI 1945. One of the reasons for judicial review is competiting rights or the constitutional rights of citizens who have been violated through existing laws, so there needs to be an examination of the law these laws. It is also known that some of the judges’ decisions in competiting rights cases only use the interpretation of the constitution without considering the impairment of rights delivered by the applicant in the examination. Thus resulting in a decision stating that the law does not conflict with the constitution. This hurts citizens who feel their rights have been violated. A balance is needed between the public interest and the constitutional rights of citizens. The counterweight can use the principle of proportionality. The principle of proportionality is needed by the constitutional judge in his consideration when faced with a case of competiting rights. But unfortunately, this principle is not always used when faced with competiting rights, and the principle was not developed by Constitutional Court judges. In this paper the problem to be answered is first the history of the principle of proportionality, secondly the comparison of the use of the principle of proportionality in constitutional justice in Germany and Indonesia. The problem was answered using normative legal research methods. The main material is the decision of the Constitutional Court and supporting materials in the form of books and journals. The conclusion in this paper is the need to use the principle of proportionality in dealing with competiting rights cases in the Constitutional Court. So it is necessary to immediately develop the principle of proportionality and its parameters.

Karakteristik Ne Bis In Idem dan Unsurnya dalam Hukum Acara Mahkamah Konstitusi Ilhamdi Putra; Khairul Fahmi
Jurnal Konstitusi Vol 18, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Ne bis in idem principle in Mahkamah Konstitusi procedural law (Constitutional Court– CC) found in Article 60 Paragraph (1) of CC Act, in prohibition form to return to trial norms previously reviewed. Discrete from Criminal Code and Civil Code which exact ne bis in idem elements, Article 60 Paragraph (1) has sole element within object review form. This research examines two problems: what are ne bis in idem principle characteristics, and what are the elements in the CC procedural law? The normative judicial research method used to understand ne bis in idem principle elative. Ne bis in idem adaptation in CC procedural law resulted broad philosophical shifts that unaffected Petitioners' legal standing and legality of the object that could bring against them. Based on decision systematics, CC put arguments ne bis in idem at Conclusion, so that it is not a verdict. Meanwhile, ne bis in idem principle in CC procedural law carry several norms, however CC Act only has two elements in legal object and legal subject-relationship forms. Meanwhile, the third element in legal development form is found in the CC decision. Because the legal standing of the Petitioners' and the legality of the object that can be challenged was not disturbed, the three elements did not apply accumulatively, in which the element of legal development was more determinant than the other two elements. As result, constitutionality actualization either occurs through positive decisions granted Petitioners' petition, moreover occurred in cases deemed ne bis in idem.

Sinergitas Kabinet Presidensiil Multipartai pada Masa Pandemi Covid-19 di Indonesia Tundjung Herning Sitabuana; Ade Adhari
Jurnal Konstitusi Vol 18, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Implement the simultaneous election in Indonesia has supported by the multiparty system. The multiparty system has an impact on the President’s leadership. In the formation of the cabinet, the President must accommodate political party coalition interest. One form of that accommodations occurs of the minister which came from the coalition political party. Different from the minister's interest background has an impact on the different policies each minister especially on COVID-19 handler in Indonesia. The research method is normative research with a case approach and concept approach. This research used secondary data that used primary, secondary, and tertiary materials. This research shows that the presidential cabinet in Indonesia is a cabinet which forms by multi-party coalitions. On multiparty coalition implementation of Kabinet Indonesia Maju 2019-2024, there were several times, the minister has different policy among the minister or with local governments such as the case of the ban on taking passengers for online biking and prohibition against homecoming. Different policies among the minister or with local government can be minimized by the President’s political leadership.

Justifikasi Pemutusan Hubungan Kerja Karena Efisiensi Masa Pandemi Covid-19 Dan Relevansinya Dengan Putusan Mahkamah Konstitusi Nomor 19/PUU-IX/2011 Dian Agung Wicaksono; Enny Nurbaningsih
Jurnal Konstitusi Vol 18, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

This conceptual article aims to analyze about the justification and legal aspect of employment termination because of efficiency phenomenon in covid-19 pandemic period. Article 164 paragraph 4 Manpower Act and Constitutional Court Decision Number 19/PUU-IX/2011 already stipulated that employment termination because of efficiency must be followed by company closure. But, covid-19 pandemic situation was forcing the employers to do employment termination because of efficiency without a company closure. The conclusion of this article is the employers did the termination without the company closure based on consideration that, it would prevent more damage than did it with the closure. The company closure would bring result all of workers, including the employers, loss their jobs. The employment termination because of efficiency, but without company closure could be preserved the operational of company and maintain the other workers’ jobs. This efficiency reason is not actually prohibited in Article 153 paragraph 1 Manpower Act and in ILO’s Convention and Recommendation 1982. However, this termination could not use Article 164 paragraph 4 Manpower Act and Constitutional Court Decision Number 19/PUU-IX/2011 as the legal basis. The compensation formulation model of the termination could use the formulation of termination without worker’s fault as stipulated by Manpower Act. In addition, the institutions of industrial relaton dispute resolution must supervise the termination process, in order the process would be staged fairly, coincide with the principles of legal termination, and the workers’s compensastion would be fulfilled by the employers.

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