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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.

Arjuna Subject : -

Articles 896 Documents

79 80 81 82 83

Prospek Penjatuhan Putusan Provisi dalam Perkara Pengujian Undang-Undang Iskandar Muda
Jurnal Konstitusi Vol 18, No 1 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Provisional petition is not common in judicial review cases. This paper seeks to find the basis for submitting a provisional petition and the pattern of ruling on the provisional petition. The results showed that there were three things that became the basis for the petition for provisions, namely: (i) there were allegations of criminal acts in the formation of the law that was petitioned for review; (ii) protecting the constitutional rights which are seriously threatened and cannot be restored in the final judgment; and (iii) the urgent need for time to obtain a judge’s decision before the election, especially with regard to the right to vote and be elected. There were three pattern of rendering decisions on provisional petition, namely (i) dropped when the case examination process is ongoing and stated in writing before making the final decision; (ii) pronounced orally in court when the case examination process is ongoing and then reaffirmed in writing in the final decision; and (iii) decided simultaneously with the subject matter of the petition in the final judgment.

Konsep Pengujian Formil Undang-Undang di Mahkamah Konstitusi Idul Rishan
Jurnal Konstitusi Vol 18, No 1 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

This study focuses on the concept of judicial review of the legislative process in the Constitutional Court. There are two research objectives to be obtained. First, the reasons for the need for judicial review of the legislative process in the Constitutional Court. Second, to offer the concept of judicial review of the legislative process in the Constitutional Court. This doctrinal legal research uses secondary data. The results of this research show that there were three factual reasons for the need for judicial review of the legislative process in the Constitutional Court. First, related to the reasons for the conception of the review. Second, the development of democracy. Third, the need for praxis. The results of this research refute the perception that judicial review of the legislative process does not have an obvious coordinate point under the constitution. Using the Rubenfeld approach, the constitution also accommodates the protection of the citizens’ constitutional rights in the due process of law-making.

Perlindungan Hak Konstitusional Masyarakat Pesisir : Urgensi Harmonisasi Regulasi Pengelolaan Pesisir Terpadu Mohammad Mahrus Ali; Zaka Firma Aditya; Abdul Basid Fuadi
Jurnal Konstitusi Vol 17, No 4 (2020)
Publisher : The Constitutional Court of the Republic of Indonesia

Ten years ago, the Constitutional Court Decision Number 3/PUU-VIII/2010 confirmed that the granting of concession rights for coastal waters (after this: HP3) by the government to private parties was contrary against the constitution, especially Article 33 paragraph (4) of the 1945 Constitution. Legislators then respond to the decision to revise Law No. 27 of 2007 as Law No. 1 of 2014 on the Amendment of Law No. 27 of 2007 on the Management of Coastal Areas and Small Islands. The revision has changed the HP3 regime from Law 27/2007 to the licensing regime in Law 1/2014. Unfortunately, these changes would lead to various juridical problems ranging from conflict between the laws and regulations under legislation that ultimately is potentially detrimental to the constitutional rights of coastal communities. This research focuses on juridical and sociological aspects related to the coastal communities protection of constitutional rights after the Constitutional Court Decision Number 3/PUU-VIII/2010. This research in-depth discusses the follow-up of the Constitutional Court decision a quo by legislators, central government, local governments, stakeholders, and the fulfilment of the constitutional rights of coastal communities. This research is normative legal research by examining the Constitutional Court decision Number 3/PUU-VIII/2010. The descriptive discussion used to understand coastal zone management law's politics to fulfil the constitutional rights of coastal communities. Besides, integrated coastal zone management (Integrated Coastal Zone Management) is a dynamic process, multidisciplinary, and repeated to promote sustainable coastal areas' sustainable management. It includes the whole cycle of information collection, planning, decision-making, management, and implementation monitoring.

Konstitusi Desa dan Eksistensinya dalam Regulasi di Indonesia Marthen B. Salinding
Jurnal Konstitusi Vol 18, No 1 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Herman Heller means that the constitution has 3 (three) phases: the constitution as a reality; the constitution in the abstraction process; and the constitution in codification. A constitution that has passed through the codification cycle is a mirror that it has found its existence and its position as a reality of socio-political life in society, or at least the constitution can describe the concept of Fundamental of a country’s community-thinking society. To interpret the understanding, the context of the Constituent Assembly as an abstraction of the value of dynamic living in the community (law and change of society), especially the village community in the period of reform that has undergone significant shifts because of abstraction errors on the constitution. Positioning the village as one of the sub-systems governance that has existed during the state of the archipelago (before Indonesia), the village has positioned the constitution at that time without passing the abstraction to codification. Thus the form of the constitution as the law contained therein rests on the provisions of the Godhead (natural law) far from the conception of value built on the rationality schemes and regulatory logic. Through normative juridical research methods and 3 (three) approaches: Historical approach, conceptual approach, and statue approach, the purpose of this research is to trace the significance of the village constitution as a unity of the village society’s reality by analyzing the context of historical and the things that are behind the trend of the conception of village society before the constitution passed the codification phase and the existence of the village constitution itself in regulations reflected in the law of the Republic of Indonesia number 6 the year 2014 about the village.

Desain Badan Peradilan Khusus Pemilihan Pasca Putusan Mahkamah Konstitusi Nomor 97/PUU-XI/2013 Supriyadi Supriyadi; Aminuddin Kasim
Jurnal Konstitusi Vol 17, No 3 (2020)
Publisher : The Constitutional Court of the Republic of Indonesia

The Constitutional Court Decision Number 97 / PUU-XI / 2013 is a constitutional affirmation of the Court to relinquish its authority to resolve disputes over the results of regional head and deputy regional head elections. Given that conceptually the elections for regional heads and deputy regional heads are not included in the general election regime. After the decision of the Constitutional Court was issued Law Number 1 of 2015 as amended several times, most recently by Law Number 6 of 2020 which explicitly regulates and mandates the establishment of a special judicial body to handle disputes over election results. Neither the Constitutional Court decisions nor the Laws explain in detail the design of a special court that deals with disputes over election results. Therefore, this paper intends to answer research questions about; first, if the Constitutional Court has put the authority to resolve the election result dispute, what is the direction of the Constitutional Court’s thought in designing the settlement of the election result dispute based on decision Number 97/PUU-XI/2013? Second, the Constitutional Court Decision has been enumerated into the Election Law, is it in line with the Constitutional Court’s thoughts in the decision Number 97/PUU-XI/2013 with the normalization in the Election Law regarding disputes over results? third, how is the design of a special judicial body in line with the decision Number 97/PUU-XI/2013 and the Election Law? The research method used in this research is normative research with a statutory approach, conceptual approach, and case approach, with sources of literature law and prescriptive analysis techniques. The findings of this study are; First, the Decidendi Ratio of the Constitutional Court decision Number 97/ PUU-XI/2013 seems to implicitly place the authority to resolve disputes over the results of the elections as part of the authority of the Supreme Court. Second, the normalization of the Pilkada Law related to the settlement of election result disputes is in line with the Constitutional Court’s decision. Third, the design of a special electoral judiciary body is formed under the Supreme Court.

Konsep Regulasi Berbasis Risiko: Telaah Kritis dalam Penerapannya pada Undang-Undang Cipta Kerja Akhmad Yasin
Jurnal Konstitusi Vol 18, No 1 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

The Law on Job Creation emphasizes the ease of doing business. One of the things that is of concern is the simplification of business permit. The concept of risk-based regulation is attractive to simplify the programs due to the assumption that it may cut off a number of licenses. However, the application of risk analysis to screen permits is something different from other countries. In addition, the application of risk-based regulations also needs to pay attention to the critique that is not accommodated in the Law. This paper describes 4 (four) critiques of the application of risk-based regulation in the Law, (i) the omnibus format confuses risk assessment, (ii) volatility risk has not been considered, (iii) systemic risk has not been considered and (iv) potential “regulatory capture”. Conceptually, the application of risk-based regulation has sparked an academic discourse regarding the broad understanding of regulation that has evolved far from the narrow meaning in academic discourse in Indonesia which defines it only as a statutory regulation.

Kewajiban Pemenuhan Hak Konstitusional Teman Tuli dalam Mengakses Informasi di Mahkamah Konstitusi Rima Yuwana Yustikaningrum
Jurnal Konstitusi Vol 17, No 4 (2020)
Publisher : The Constitutional Court of the Republic of Indonesia

As one of the judiciary bodies in Indonesia, which plays a role as the human right protector, the Constitutional Court have a significant part to ensure the fulfilment of the Indonesians’ human right. Moreover, before signing the Convention on the Rights of Persons with Disabilities in 2007 in New York and ratifying it in 2011, Indonesia had recognized human rights under its constitution, namely UUD 1945. Furthermore, the government of Republic Indonesia has been approving Act number 8 the Year 2016 about Persons with Disabilities in 2016. Under this act, the deaf has its recognized rights, especially to access information, to choose the preferable kind communication forms as it needs, and the affirmation of the state’s obligations to fulfil their human rights equally. However, the Constitutional Court has yet to have a standard operating procedure yet which specifically regulates the mechanism of accessible information for the deaf. Accordingly, in disseminating information to the public, not all people can access the information. In other words, the deaf find difficulties to comprehend the content of the message conveyed by the Court to the public as the Court do not consistently provide any tools, such as sign language interpreter and written texts. Thus, it is safe to submit that accessible information is yet to be provided by the Court in terms of publishing the information to the public. This article discusses the obligation of the Constitutional Court to ensure the fulfillment of the deaf right to access information. The aim of elaborating some related cases law and an applied standard operational procedure in Georgia’s Court in this article is that to remind the Constitutional Court to be consistent in ensuring the enjoyment and fulfillment of the deaf right to access information as the constitution recognize equality for all.

Menimbang Kedudukan Majelis Kehormatan Mahkamah Konstitusi Setelah Terbitnya Undang-Undang Nomor 7 Tahun 2020 Zuhad Aji Firmantoro
Jurnal Konstitusi Vol 17, No 4 (2020)
Publisher : The Constitutional Court of the Republic of Indonesia

This research elaborates the Constitutional Court interpretation within Decision No. 49/PUU-IX/2011 on judicial review of Law No. 8 of 2011 on amendments of Law No. 24 of 2003 on the Constitutional Court which its decision has granted mostly the petitioner’s petitions to change the Honorary Council of the Constitutional Court members composition. There are at least two examined issues in this study, they are: Firstly, does the addition of elements House of Representative, Government and the Supreme Court contradict Article 1 paragraph (3) and Article 24 paragraph (1) and (2) of the 1945 Constitution? And secondly, what is the implication of the decision to repeal Article 27A paragraph (2) letters C, D, and E for check and balance between three branches of state government (executive, legislative and judicial) in Indonesia? This research is normative legal research that uses a conceptual approach, also reviewed with case studies related to material research. The results show; Firstly, based on the study to Indonesian Constitutional Court Decision No. 49/PUU-IX/2011 which accepted most of the petitioner’s petitions on judicial review of Law No. 8 of 2011, the Constitutional Court stated that the addition of elements House of Representative, Government and the Supreme Court as members in the Honorary Council of the Constitutional Court then legislators have endangered the freedom of judicial power as regulated Article 1 paragraph (3) and Article 24 paragraph (1) and (2) the 1945 Constitution. Secondly, this decision has an impact on the members of the Honorary Council of the Constitutional Court which only consists of two elements, namely the constitutional court and the judicial commission. Therefore, the Constitutional Court Decision is considered successful in keeping the principle of check and balance between three branches of state government in the Indonesian constitutional state system.

Mendialogkan Hakikat Hukum dan Keadilan Pada Berbagai Aliran Pemikiran Hukum dalam Novel Les Miserables Helmi Kasim
Jurnal Konstitusi Vol 17, No 4 (2020)
Publisher : The Constitutional Court of the Republic of Indonesia

Justice should be clearly presented in the wording of written law since it will serve as a basis by law enforcement officer and judges in adjudicating cases. The spirit of justice that is contined in the written law should also inspire the way law is enforced and decision made. This paper tries to reflect the essence of justice and law through various plots and characters in Victor Hugo’s novel Les Miserable by looking at it from the perspective of various schools of legal thought. The reflection made shows that a legal event can be studied using various perspectives based on schools of thought in legal science. In the analysis, natural law schools of thought, positivism and feminist jurisprudence were used. Dialoguing these various schools of thought leads to a perspective on how law and justice should be perceived and then expressed normatively before being applied to society.

Pembatasan Kekuasaan Amendemen Konstitusi: Teori, Praktik di Beberapa Negara dan Relevansinya di Indonesia Mohammad Ibrahim
Jurnal Konstitusi Vol 17, No 3 (2020)
Publisher : The Constitutional Court of the Republic of Indonesia

In comparative constitutional law, the doctrine of unconstitutional constitutional amendments has in recent years attracted wide attention among scholars. The consequence of the doctrine is that there are limits to constitutional amendments. This paper seeks to explore theories that explain how authorities to amend the constitution may be limited. In addition, it also discusses the practice of the doctrine of countries such as Germany, India and Colombia. Drawing from the experiences of these countries, it attempts to answer whether the doctrine can be used in the Indonesian constitutional system. It argues that under the 1945 Indonesian Constitution, there exist unamendable provisions. Therefore, the Constitutional Court might adopt the view that there are limits to constitutional amendments in Indonesia if there was a constitutional amendment to unamendable provisions. This doctrinal legal research uses normative legal and comparative approaches.

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INDONESIA