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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 896 Documents

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Model dan Implementasi Putusan Mahkamah Konstitusi dalam Pengujian Undang-Undang (Studi Putusan Tahun 2003-2012) Syukri Asy’ari; Meyrinda Rahmawaty Hilipito; Mohammad Mahrus Ali
Jurnal Konstitusi Vol 10, No 4 (2013)
Publisher : The Constitutional Court of the Republic of 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 Putusan MK No. 22-24/Puu-VI/2008 Terhadap Model Affirmative Action (Studi di DPRD Provinsi Jawa Tengah Hasil Pemilu Legislatif 2009) Pusat Kajian Konstitusi FH-Universitas 17 Agustus 1945 Semarang
Jurnal Konstitusi Vol 8, No 1 (2011)
Publisher : The Constitutional Court of the Republic of Indonesia

After the Constitutional Court decision number 22-24/PUU-VI/2008, there are a shift competition between political parties for candidate-between, especially in political parties. It also implies the strategy of the campaign. Acquisition of candidates for seats in the Parliament of the province of Central Java went from 15 seats in the elections of 2004 to 21 seats in the elections of 2009. This increase was caused by political parties factor, the figure of the candidates, and campaign strategy, as well as a small number of candidates. In nomerik there are 92 between 100 candidates were elected in a small number (1,2,3) and especially among the 21 candidates selected, 20 women also occupy the small number (1,2,3). Recommendation for these problems are: the provisions of the article and / or clause which States that... List of candidates have been prepared on the basis of the number of series that contains at least 30% (thirty percent) of the representation of women is maintained and is complemented by the formula in each electoral district; The provisions of article and/or the point of, which states that ... In the list of candidates will be every three (3) candidates, at least one (1) of female candidates was retained and supplemented formula ... In the list of candidates will be every three (3) candidates, at least 1 (one) female candidate who was placed on a small number of not less than 30% (thirty percent) of the number of constituencies, and the future of affirmative action based models quota of 30 % (thirty percent) and zipper for women candidates and the placement model in a limited number is not sufficient to maintain a procedure, but must be accompanied by the development of the cultural climate of recruitment politician in their respective political parties competing in elections and the increase in the specific political education for women.

Pola Pelanggaran Pemilukada dan Perluasan Keadilan Substantif Miftakhul Huda
Jurnal Konstitusi Vol 8, No 2 (2011)
Publisher : The Constitutional Court of the Republic of Indonesia

The pattern of direct elections of regional head and the Constitutional Court practices in adjudicate disputes local elections have been developed rapidly. Some of violations color the elections of regional head. They were the mobilization and partiality of Civil Servants, abuse of office, facilities, and state budget by the incumbent candidate, and the practice of money politics. The systematic, structured as well as massive violations generally results reelected vote with a final decision or interlocutory preceded. More than that, various violations of further stages of the General Election was also assessed based on the principle of free and fair election so that the decision of the Court has eigh models based on similar characteristics.The paradigm of substantive justice made procedural rules does not open the opportunity for justice. It drives the role of the Constitutional Court put the final determinant of local democracy which is still colored by piracy and fraud. Constitutional Court justices are not only expand but also strengthen democracy that took place so as not limited to procedural democracy. With this, the examination is very extensive; the free encyclopedias assess weight and sanction violations. Paradigm has evolved to be followed by the ratio decidendi constancy previous decisions and anticipate the variety of sanctions violations by designing the right to justice itself.

Implikasi Pengaturan Lingkungan Hidup terhadap Peraturan Perundang-Undangan dalam Kegiatan Bisnis (Perspektif Konstitusi) Muhammad Insa Ansari
Jurnal Konstitusi Vol 11, No 2 (2014)
Publisher : The Constitutional Court of the Republic of Indonesia

In the Act of 1945 (before amendment) environment is part and Chapter XIV of the National Economy and Social Welfare, precisely in Article 33 paragraph (3). After the amendment, the environment gets the settings in Chapter XA of Human Rights, which in Article 28H (1) and Chapter XIV of the National Economy and Social Welfare, which in Article 33 paragraph (3) and (4). Environmental settings in the constitution of course have implications for legislation, including legislation business activities. There are a number of regulations of business activities that have included environmental material in it. Law No. 40 of 2007 on Limited Company is a business law institutions that have incorporated environmental material. While the laws governing business activities have included environmental material of which is Law No. 25 of 2007 on Investment, Law No. 10 of 1998, and a number of other legislative business activities.

Tafsir Putusan Mahkamah Konstitusi Tentang Sengketa Kepemilikan Pulau Berhala Muh. Risnain
Jurnal Konstitusi Vol 11, No 3 (2014)
Publisher : The Constitutional Court of the Republic of Indonesia

The Decicion of Constitutional Court concerning Berhala Island not a dispute of property belonging under civil law. This dispute are constitutionality of the law concerning establishsing a new local government to the UUD 1945. Under Decicion of Constitutional Court in case No. 32/PUU-X/2012 and No. 62/PUU-X/2012 judge of Constitutional Court interpretation law about establishsing a new local government not based on legal constitutionality of that law to the UUD 1945. The interpretation of judge of Constitutional Court based on recognition and respective to high court decicion in case judicial review about Berhala Island.

Peran Putusan Mahkamah Konstitusi dalam Perlindungan Hak Asasi Manusia terkait Penyelenggaraan Pemilu Janedjri M. Gaffar
Jurnal Konstitusi Vol 10, No 1 (2013)
Publisher : The Constitutional Court of the Republic of Indonesia

Constitution, as the supreme law, is created to protect human rights. Constitution contains basic principles of state administration and citizens rights that have to be protected. In relation to the citizens political rights, election is related to Human Rigts matters. Election administration constitutes manifest acknowledgement of human rights in the life of the nation. Democratic election can be carrried out if there protection of human rights is guaranteed. One of the holders of judicial power that plays roles in providing human rigths protection through its decision is Constitutional Court (CC). The Court carries out the function as the guardian of the constitution, the final interpreter of the constitution. Besides, the Court also functions as the guardian of democracy, the protector of citizens’ constitutional rights and the protector of human rights. The function of the Court as the protector of human rights constitute consequence of the incorporation of Human Rights as the substance of the constitution. The endeavour of the Court to protect human rights can be perceived from some of its decisions either in the case of judicila review of laws or settlement of local election disputes which are, inter alia, restoration of the right to vote for the former members of Indonesian Communist Party, the right to vote for certain ex-prisoners, the granting of rights to be candidate for parties that do not have seat in the parliament, the right to be candidate for individual independent citizen in local election, protection of rights for incumbents, the right to vote that is free from threat and terror, protection of the right to be candidate thta is free from the act of impediment and recognition of mechanisms that are recognized in customary law.

Implikasi Putusan MK No. 102/PUU-VII/2009 Terhadap Pelaksanaan Pemilihan Kepala Daerah (Studi di Kabupaten Malang dan Kota Pasuruan) Pusat Kajian Konstitusi FH-Universitas Brawijaya
Jurnal Konstitusi Vol 8, No 1 (2011)
Publisher : The Constitutional Court of the Republic of Indonesia

The Constitutional Court Decision No. 102/PUU-VII/2009 has provided new scope in the implementation of democratization process in Indonesia. The decision has simplyfied the administrative requirement of voters in the Presidential Election held in July 8th 2009, which is the permit to use the Citizen Identification Card (KTP) and Passport as voter identification requirement in voting day. This regulation more or less have strengthen the guarantee of citizen’s rights in this democratic event. The Court decission No. 102/PUU-VII/2009, implicated in building argumentations which related to the Local Election Commision attitudes and policies in resolving problems which occurs in the Fixed List of Voters (DPT) in the event of local elections.

EKOLOGI KONSTITUSI: Antara Rekonstruksi, Investasi Atau Eksploitasi Atas Nama NKRI Mukhlish Mukhlish; Mustafa Lutfi
Jurnal Konstitusi Vol 8, No 3 (2011)
Publisher : The Constitutional Court of the Republic of Indonesia

This state is basically recognized as a rich state, either in term of ecological side or in term of cultural potency and ideological varieties, as the inheritance of motherland. However, this is so sad when we ironically saw a bunch of tragedies which are tragically occurred, start from tsunami, and other issues such as the scandal of century that seems to be unsolved! Moreover, nowadays, the environmental problem has occurred and reached its highest culmination point. The environmental destruction and pollution process have uncontrollably happened. Noting so many catastrophes happened anywhere in this state; such as floods, landslides, earthquakes, lapindo mud tragedy, roads vanishing, illegal logging, forest function shift, and many others, is so an ironic thing. These all catastrophes become such a sign of inharmonic relationship exist between the state, human and the environment. Then, should we always blame these disaster s for the governments’ fault that, in such this multidimensional crises and demoralization that full of utopia and ironical images, seems to be unaware of their main position? The law is neutered and naked from its constitutional essence. This terrible condition can be impossibly happened when our representatives in the government are loyally take taken a side of the important of their party through the political campaign appointments which seem to face stagnation in its implementation and not loyal to the true mandator. Perceiving this such phenomenon, we need not only a kind of law penetratin that progressifely and integratifally can become an elegant problem solving for achieving of the aims of ongoing developmnet that can fully protect the importance of the environment and human life intentions but a moral forces and people power that should be continuallly implemented. Hence, the urgency of law management, ecological tutorial awaraness and the success of environmetal living management in term of national law development, becomes a final destination of this writting. Moreover , this writing is a kcorrection of the unclear control and maintenanceof the law of environmental administration.

Politik Hukum Perekonomian Berdasarkan Pasal 33 UUD 1945 Taufiqurrohman Syahuri
Jurnal Konstitusi Vol 9, No 2 (2012)
Publisher : The Constitutional Court of the Republic of Indonesia

Article 33 of the 1945 Constitution of the Republic of Indonesia regulates on National Economy and Social Welfare. Thoughts and ideas of the founding fathers in drafting that article can be traced through the study of Political Law. The study was conducted by using historical approach to explore the ideas of the framers when drafting that article. Thoughts and ideas of the framers are the object of analysis in this essay. They are among other things: first, the seriousness of the state in protecting the entire nation and the homeland based on the concept of unity in a real effort to bring about social justice; second, the concept of “Social Welfare” is intended to guarantee the welfare to the state/government and all the people; third, the framers who are committed and convinced that the ideals of social justice in the economy can achieve equitable prosperity; fourth, the framers requires that the state only do the maintenance (bestuursdaad) and process (beheersdaad), instead of proprietary (eigensdaad).

Konstitusi Hijau Perancis: Komentar atas asas Kehati-hatian dalam Piagam Lingkungan Perancis 2004 Andri G. Wibisana
Jurnal Konstitusi Vol 8, No 3 (2011)
Publisher : The Constitutional Court of the Republic of Indonesia

France is the first country that incorporates the precautionary principle into its constitution, via the 2004 Charter for the Environment. Based on the way the principle is formulated in the Charter, this paper attempts to show whether such an incorporation of the principle into French Constitution should be welcome as a progressive move. In addition, the paper demonstrates how the precautionary principle has been developed and adopted in various international environmental agreements or declarations. The paper also compares the French version of the principle with the development of the precautionary principle in Indonesian environmental law. The papers shows that interpreting the precautionary principle as risk assessment is not consistent with the intention of developing the precautionary principle, because risk assessment as currently conducted is plagued with a technocratic approach. The practices of risk assessment have oversimplified the situation of incertitude as merely risk, and consequently, has the potential to ignore public opinion and participation in the decision making process. In this sense, the French version of the precautionary principle is not quite progressive. In contrast, one Indonesian interpretation of the precautionary principle has moved beyond the issue of risk assessment. Such an interpretation, stemming from the court rulings on the Mandalawangi case, combines the precautionary principle with strict liability, by imposing liability to those who fail to take precautionary measures against uncertain damage.

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