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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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Rekonstruksi Sistem Pemidanaan dalam Undang-Undang Perpajakan Berdasarkan Konsep Ultimum Remidium Marbun, Rocky
Jurnal Konstitusi Vol 11, No 3 (2014)
Publisher : Mahkamah Konstitusi Republik Indonesia

Implementation of criminal sanctions in the Act No. 28 Year 2007 on General Rules of Taxation, give rise to legal issues in conceptual level. That the Tax Law, is a part of the State Administration Law, requiring forceful measures for taxpayers, especially the Taxable Entrepreneur, which in principle is a form of criminalization of administrative behavior. Criminal Law, through the principle of legality, wants a norm setting strict sanctions and obviously in the legislation, it appears to be broken in the Act No. 28 Year 2007 on General Rules of Taxation. Parameters of the crime of taxation is limited only by the elements of negligence and intentional, with the implementation under based on discretion of of the competent institution. Thus, gave rise the transactional behavior in a practical level. Therefore, the principle of ultimum remedium, becomes extremely important to avoid the use of arbitrary of discretion.

Model Lembaga Pendaftaran Nama Domain Dikaitkan Dengan Undang-Undang Nomor 11 Tahun 2008 Menuju Kepastian Hukum Jumhur, Helni Mutiarsih
Jurnal Konstitusi Vol 11, No 3 (2014)
Publisher : Mahkamah Konstitusi Republik Indonesia

The research focuses on the institutional model of the domain name ditemukannhya formed by society but still under the control of government in which the formation of a domain name registration management agency ( registry ) was formed on the recommendation of a domain name forum so that in accordance with the principles contained in that form institutions UUITE domain name come from the government or the public and to ensure legal certainty of the user domain name. The method used is qualitative normative juridical using secondary data in the form of legislation in order to harmonize legislation both vertically and horizontally in order to find out the problems that occur in the establishment of a domain name and is supported by the primary data in the form of in-depth interviews with expertis in the field Information technology. The conclusion derived from this study is a model of the domain name registration body ( registrar ) is formed from the community who have received a license from the agency managing the domain name ( registry ) that has been recommended by the government through forums domain name.

Rekonseptualisasi Penyelesaian Perselisihan Hasil Pemilihan Umum di Indonesia Jayus, Jayus
Jurnal Konstitusi Vol 10, No 2 (2013)
Publisher : Mahkamah Konstitusi Republik Indonesia

Elections are the means to implement sovereignty of the people in order to elect members of the House of Representatives, Regional Representatives Council, Local Legislative Council, the President and Vice President. Election are also meaningful for selecting the leader of the nation and the state (public officials) and as community control over board membership, President and Vice President to come. Election results are manifestation of popular sovereignty, which can lead to a dispute between organizer and election participants either political parties or individuals. The result of which can be challenged legally by election participant. The participant can also request the cancellation of the election result to the agency given with the authority to decide. Conceptually, the right institution to decide on election dispute is a special ad hoc election court. Constitutionally, dispute resolution of election result is intended to protect citizens' constitutional rights.

Pro-Kontra dan Prospektif Kewenangan Uji Konstitusionalitas Perpu Muda, Iskandar
Jurnal Konstitusi Vol 10, No 1 (2013)
Publisher : Mahkamah Konstitusi Republik Indonesia

Pros and cons of the authority to deal with judicial constitutionality review of Government Regulation in Lieu of Law (Perpu) either from fellow judges of the Constitutional Court (MK) or from the world of legal science is acceptable. The pros and cons is not due to the differences in interests between them, but it is caused by the differences in schools or schools of thought and interpretation methodologies adopted. The authority of the Constitutional Court to review the constitutionality of Perpu is in line with the philosophy of Judicial Activism (the concept of active understanding) which is identical to the "Statue of the Goddess of Justice" whose eyes are not closed in order to be able to watch and absorb the "sense of social justice", to incorporate the living legal values in the society, respond to the demand and aspiration of the people and, furthermore, to create “the thinking judges” which make their decisions responsive. However, the authority of the Court to review the constitutionality of the Perpu might cause “broader impacts” in the future which means that the impact will not be only on the constitutionality review of the Perpu but also on the other decisions of Constitutional Court.

Pengadilan Sebagai Lembaga Penegakan Hukum (Perspektif Civil Law dan Common Law) Triningsih, Anna
Jurnal Konstitusi Vol 12, No 1 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

Law, as an justice institution run its functions through a specific process towards a certain direction in order to achieve justice. Justice now a days is needed as something concrete as the fulfillment of the most basic needs of the community. Law enforcement, in parliamentary life is run by the Government (the executive organs) and through the courts (judicial organ).There are different approaches in law enforcement. The rule of law in the Civil Law System which is shared by the countries in the European continent or land use law, also known as legal approach. In the Common Law System which is shared by the United Kingdom and the United Kingdom speaking countries, using the administration approach of the Administration, called the administration of justice. Implementation of the fundamental principles of the law, or because of its emphasis on the steps of a procedure in the event properly can make the law as an unrealistic myth, inefficient and far from the purpose of the law and implies the occurrence of loss of trust from the community, while the basic principles of administration, because of its emphasis on the achievement of business objectives efficiently will have implications for the lack of certainty in law enforcement that is essential for the achievement of Justice for everyone. Besides that addition, it also can be an opportunity for the Court arbitrariness because discretion has its wide open room. Every Legal Approach has its own advantages and disadvantages. Making option to choose which legal approach as an appropriate and good policy in law enforcement is related to the characteristics and level of knowledge of the community also the environment where these law applied.

Konstitusionalitas dan Model Pendidikan Karakter Bangsa Pasca Putusan Mahkamah Konstitusi Anggono, Bayu Dwi
Jurnal Konstitusi Vol 11, No 3 (2014)
Publisher : Mahkamah Konstitusi Republik Indonesia

Constitutional Court Decision No. 100/PUU-XI/2013 stated that Pancasila as a basic state declared in the the 1945 preamble can not be equated with the 1945 Constitution, Unity in Diversity, and the Unitary State of Indonesia declared as the pillars of the nation and state as cited in the Article 34 paragraph (3b) letter a. Considering the benefits of the nation’s effort to build a character, the Constitutional Court declared constitutional effort of political parties and other state agencies that carry out political education through the dissemination of Pancasila, the 1945 Constitution, Unity in Diversity. The Court sets a model of character education necessary to be developed which is not limited in the for pillars but it includes some other aspects such as the state of law, sovereignty, an insight of archipelago, national defense, and so forth. The government basically hold the primary responsibility for implementing character education for its citizens. Thus, the government needs to consider of alternatives to establish a special agency to formulate and implement effective national character education.

Menggagas Pemilihan Presiden yang Demokratis dan Aspiratif Rauta, Umbu
Jurnal Konstitusi Vol 11, No 3 (2014)
Publisher : Mahkamah Konstitusi Republik Indonesia

Since the 2004, election of the president and vice president made directly by the people. Normatively, Indonesia has been striving for election of the president and vice president are more democratic, as reflected through the freedom and the involvement of a political party or coalition of political parties contesting the election to carry the presidential and vice presidential candidates meet all the requirements specified in the legislation. However, in practice the presidential election in 2004 and 2009, found several problems. This paper is intended to identify a number of election issues, once initiated the implementation of a formula for the realization of a more democratic election and aspirative.

Dilematika Putusan Mahkamah Konstitusi vs Kekuatan Politik dalam Impeachment Presiden Nadir, Nadir
Jurnal Konstitusi Vol 9, No 2 (2012)
Publisher : Mahkamah Konstitusi Republik Indonesia

The involvement of the constitutional court of RI in examining and ruling on the case of presidential impeachment is textually not the authority but obligation that whether or not presidential impeachment happen during president’s terms of office will be determined by the supporting political strength in the MPR session. The decision taken in the session should be based on the decision of Constitutional Court as the interpreter and the guardian of the constitution. This condition causes Constitutional Court decision becomes dillematic because it will be determined by the political strength in the session of the MPR. Besides,the fact that three of the nine judges are proposed by the President and three other are proposed by DPR is also dilemmatic.

Perlindungan Hak Atas Kebebasan Beragama dan Beribadah dalam Negara Hukum Indonesia Fatmawati, Fatmawati
Jurnal Konstitusi Vol 8, No 4 (2011)
Publisher : Mahkamah Konstitusi Republik Indonesia

The first principle of Pancasila recognized God Almighty, which means the duty of every man in Indonesia to respect the religion and beliefs of others, because it is everyone’s right to choose, embrace, and practice the teachings of their religion freely without interference and without disturbing others. It means not only ban unethical proselytism, but also ban desecration and abuse of religion in the Republic of Indonesia to protect security and public order to avoid unrest in society. It is set in the first principle of Pancasila and was animated in articles of the Constitution (Article 28E Paragraph (1) and Article 29) regulating the right of religion and worship, which is then further regulated in some legislations, among other Law Number 39 Year 1999 on Human Rights and Law No. 1/PNPS/1965 on the Prevention of Abuse and / or Blasphemy. Restrictions on the freedom to perform and determine one’s religion or belief under article 18 paragraph (3) of the ICCPR can only be limited by provisions of law, and it is needed to protect public safety, order, health, or morals of the fundamental rights and freedoms of others; and the regulation in Article 11 of Law No. 1/ PNPS/1965 has met the criteria for the application of restrictions on the freedom to perform and determine one’s religion or beliefs, in the sense that the restriction is the conduct of the teaching and not in his belief, by law, and to protect security and public order to avoid unrest in society.

Politik Deliberatif dalam Musyawarah Perencanaan Pembangunan: Analisis Structures and Meanings Atas PP RI No. 28/2008 Muzaqqi, Fahrul
Jurnal Konstitusi Vol 10, No 1 (2013)
Publisher : Mahkamah Konstitusi Republik Indonesia

The atmosphere of Indonesian democratic decentralization presents an interesting phenomenon about the strength of demand at the local level participation. Participation was on its way, legally enshrined in both the legal basis, namely PP RI No. 8 Year 2008 about stage, preparation procedures, control and evaluation of Regional Development Plan (in legal terminology known as Musrenbang). That's where the participation is so arranged that it gains the spirit of development planning in local areas level with the hope that it will combine top-down and bottom-up approaches. This study focuses on efforts to analyze the two legal basis from the perspective of theory and practice of deliberative democracy in which participation based on inter-subjective communication is at the heart of modern democratic state.In search of the analysis, the findings are somewhat surprising. Those are that in Musrenbang, the nuance was still top-down so that they are not worthy to be equated with the theory and practice of deliberative democracy. That top-down shade includes the initial planning, control and evaluation of which are still very elitist. In terms of the arrangement of initial planning for development either RPJPD, RPJMD or RKPD is conducted by the Regional Development Planning Agency. In terms of control, officials from the home affairs ministry level to regent/mayor including Bappeda are involved. In all the stages, the people are involved but only to give input. While in the case of the evaluation, the greatest authority remains in the hands of the relevant authorities at every level of government. People have the chance to evaluate only as far as they have accurate information. In other words, people will find it hard to participate and evaluate the planning that has been done since the standard of accuracy of the information is still determined by the government.As a result, using the structures and meanings analysis, this thesis research confirms that the standards of deliberative democracy need to thrust into the legal basis governing participation in development planning so that decisions resulting in better planning could reflect the aspirations of the people. However, democracy is essentially regierung der regierten (rule of those who governed).

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INDONESIA