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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

82 83 84 85 86

Politik Hukum Pengaturan Keserentakan Pemilu Abdul Basid Fuadi
Jurnal Konstitusi Vol 18, No 3 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

General elections in Indonesia have shifted a lot motivated by efforts to seek their ideal form. The last time, elections were held simultaneously by combining the five types of elections stipulated in Article 22E of the 1945 Constitution. The various complexities and challenges of the 2019 election should be evaluated. Elections basically have two main objectives, 1) to produce a government that represents every element in society; 2) create a government that is able to govern well. This paper discusses about the complexity and challenges of the 2019 simultaneous election and how the ideal election timing is designed. This research uses normative legal research methods (legal research) with two approaches: normative approach and conceptual approach. This study resulted, first, there were technical complications in the 2019 Concurrent Election, namely the workload of the organizers, especially the KPPS; a significant increase in the election budget; and voter confusion due to too many types of elections which implicated too many candidate lists. Second, the Constitutional Court has determined six electoral models as well as constitutional ones, and this can be considered as judicial law politics. Lawmakers must immediately act on the Constitutional Court's decision by amending the electoral law which adopts one of the simultaneous election models.

Konstitusionalitas Pelunasan Utang Pajak Perusahaan Pailit Berdasarkan Putusan Pengadilan Bagus Surya Prabowo; Wiryanto Wiryanto
Jurnal Konstitusi Vol 18, No 4 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

The decision of the Constitutional Court Number 41/PUU-XVIII/2020 states that the appointment of the management as a representative of a taxpayer in the form of an entity aims to guarantee certainty that the actions of a legal entity can be held accountable, equivalent to the guarantee of the right of a legal entity to do or not to do something for the sake of the legal entity in question (which incidentally ends up in the interests of the management and shareholders). The management is the main party who is held accountable for the actions/actions of a legal entity because the management operates it in a daily basis. The imposition of responsibilities of a legal entity (which cannot do anything without human assistance) to a person or group of management is not contrary to the 1945 Constitution. Likewise in the case of corporate tax obligations, the provisions that impose the settlement of an entity's tax obligations (debts) bankrupt company tax) to the management of the agency represented by the curator is in accordance with the 1945 Constitution. In accordance to Article 32 paragraph (2) of the KUP Law with the norms of the 1945 Constitution, especially in terms of providing protection and fair legal certainty to all parties interacting with legal entities, including the Applicant who is the administrator of the legal entity, as guaranteed by Article 28D paragraph (1) of the 1945 Constitution. One form of the rights of the parties that interacts with legal entities is the right of the state to receive payment of taxes from a certain legal entity through a party or person acting as the administrator of the legal entity. This article discusses the constitutionality of paying tax debts to companies that declared bankrupt by a court decision.

Urgensi Pengujian Formil di Indonesia : Pengujian Legitimasi dan Validitas Faiz Rahman
Jurnal Konstitusi Vol 18, No 4 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

The review of the constitutionality of norms is a control mechanism that is carried out on the law-making procedures (procedural review) and the substance of the norm (substantive review). This is a consequence of a constitutional state and the rule of law. Cases of procedural review have often occurred in Indonesia, but the understanding and regulation is still relatively inconsistent as on substantive review. One of the reasons why this condition occurred is due to the lack of regulation regarding the procedure for the law-making process in the Constitution which is an indicator of the procedural review. Therefore, this study tries to answer the nature or urgency of the procedural review, by questioning what was tested by the Constitutional Court in the formal examination? This is doctrinal research which using a conceptual and cases approach in Indonesia, Kolombia, and South Africa. The selection of the case are carried out according to the functional comparative law method, which also considered on non-legal factors such as social and political factors that influence the norm. The results of the study found that the urgency of procedural review is to ensure that the law has fulfilled the aspects of legitimacy and validity. Legitimacy is arisen through meaningful participation, whereas validity comes from the conformity of the law-making processes with the procedures and can be proven materially, not only fulfilling formal requirements.

The Constitutionality of the Electronic Information and Transaction Law: Towards Overcoming SARA Conflict on Social Media Ismail Hasani; Halili Halili
Jurnal Konstitusi Vol 18, No 4 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

The subsistence of the Electronic Transaction and Information Law control and manage the illicit offenses related to the multiplication of concerns that hold Ethnicity, Religion, Race, and Intergroup (SARA) . Following the idea of law developed by practicality as a way of social regeneration. It is a legal normative investigation utilizing theoretical concurrence and laws. This research is a logical description by using qualitative information examination. The study revealed that content that contains SARA issues is referred to as a hatred statement, which can be construed as an act of communication, carried out by groups or individuals in the form of aggravation and endangered to throw the scandalous actor to prison for utmost six years and a fine of 1.000.000.000 rupiahs. Additionally, the accomplishment of the permissible authority of the Electronic Transaction and Information Law can be classified as non-implementation of the law authenticity establishment as shown from the culture that was not able to go after the rules made by law. It means that this law did not yet have a legal effect. This investigation advocates that society needs to behave by following the officially permitted rules, explained in the Electronic Transaction and Information Law.

Membangun Paradigma Hukum HAM Indonesia Berbasis Kewajiban Asasi Manusia Paulus Rudy Calvin Sinaga; Anna Erliyana
Jurnal Konstitusi Vol 18, No 4 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Human rights are essential things to uphold because their existence guarantees the equality of all humanity. In Indonesia, the issue of human rights is still often a problem, and one source of the problem is the imbalance between human rights and unbalanced with human rights obligation. This research was conducted with a systematic literature review approach to propose a human rights law paradigm based on human rights obligations. From the perspective of legal analysis, the nature of this research is categorized into prescriptive research. The materials in this study were sourced from laws, books, and scientific articles from national and international journals that deal with the concept of human rights and human rights law. The results of this study indicate that the enforcement of human rights must look at fulfilling human rights obligations because, in general, a person can claim rights if they have met the requirements. By basing their rights on obligations, human rights law will improve. This article is expected to be able to be one of the references in the application of human rights law in Indonesia to build justice between human rights and obligations.

Kesadaran Berkonstitusi bagi Penegak Hukum terhadap Putusan Mahkamah Konstitusi sebagai Upaya Menjaga Kewibawaan Peradilan Ahmad Yani
Jurnal Konstitusi Vol 18, No 4 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

The decision of the Constitutional Court is a type of decision that is declaratoir constitutive. When the decision of the Constitutional Court states that the law is not binding, because it is contrary to the Constitution, then by itself the decision also creates a new legal situation. The formulation of the problem that will be answered in this research is how the concept of building constitutional awareness for law enforcement institutions to obey the decisions of the Constitutional Court. This research is a type of juridical-normative research, to conduct a search on the decisions of the Constitutional Court. Disobedience to the decision of the Constitutional Court will have fatal consequences, from the potential for a reduction in the function of the Constitutional Court institution to the occurrence of constitutional justice delays. Obedience to the decisions of the Constitutional Court cannot only rely on the legal awareness of the community and state institutions, but also needs to be supported by “coercive” instruments. Therefore, the importance of collaborative collaboration across state institutions so that the decisions of the Constitutional Court can be implemented properly as they should. In addition, it is necessary to design the imposition of sanctions for acts of disobedience to the decisions of the Constitutional Court.

Dari Sekadau ke Sabu Raijua: Menakar Jejak Bawaslu dalam Dinamika Persidangan di Mahkamah Konstitusi Rima Yuwana Yustikaningrum; Mohammad Mahrus Ali
Jurnal Konstitusi Vol 18, No 4 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

The Election Supervisory Body (Bawaslu) in the hearing of 2020 Regional Head Election Dispute played an essential role as a supervisor and its statements in the field became one of the keys for the Constitutional Court of Justice to obtain balanced, neutral or impartial information. This article focuses on the role and track record of Bawaslu as the supervisor of the Regional Head Elections in the vortex of controversy. Disputes over the results of the regional head elections in the Constitutional Court. In PHPKada, these include North Morowali Regency, Boven Digoel Regency, Sekadau Regency, Pesisir Selatan Regency, and Sabu Raijua Regency where Bawaslu always presents information on the results of supervision in every trial at the Constitutional Court. The facts of the trial that were revealed cannot be separated from the judicial strengthening of Bawaslu's role and the Panel of Judges can elaborate deeper into the results of field supervision. The process of proof in the trial of the Constitutional Court by examining the evidence, witness statements are also equipped with the submission of the results of the report by the party giving the information, namely Bawaslu. The addition of this authority makes Bawaslu no longer just a recommending institution, but also decide the election case.

Implementasi dan Akibat Hukum Penerapan Asas Lex Spesialis Derogat Legi Generalis terhadap Keistimewaan Aceh Titis Anindyajati; Winda Wijayanti; Intan Permata Putri
Jurnal Konstitusi Vol 18, No 3 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

The contestation to National Election Act’s implementation or principle of lex specialis derogat legi generalis as rule’s problem reference to regional dispute in Aceh. This research is a normative legal related to Aceh Election and Qanun on Election. The crucial problem with existence of special rules of Aceh’s privilege are not set by threshold conditions. Lex specialis derogate legi generali’s principle cannot be used in election dispute will contradict the 1945 Constitution. The Election Act cannot be ruled as dispute basis to Constitutional Court. The principle can be applied to cases that requirements, so harmonious legal drafting becomes urgency to formalize a special judicial body.

Putusan Mahkamah Konstitusi: Dampaknya terhadap Perubahan Undang-Undang dan Penegakan Hukum Pidana Nyoman Mas Aryani; Bagus Hermanto
Jurnal Konstitusi Vol 18, No 3 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Constitutional Court verdict have big impact for laws development including criminal law. In criminal law, the verdict caused change in norm both arranged inside Criminal Law Code and outside Criminal Law Code. Futhermore, this issue is interesting to study when it is connected with expansion authority of Constitutional Court from negative legislator to positive legislator. Constitutional Court verdict form as ‘conditional’ verdict either constitutional or conditional inconstitutional are example of the transformed Constitutional Court authority from negative legislator to positive legislator. As known, criminal law is basing on legality principle. Thus, the verdict especially ‘conditional’ verdict raises polemic in its implementation because not all the verdict can be followed by changing criminal law formally. This situation can inflict various difference in criminal law enforcement. Constitutional Court verdict evoke changing criminal law norm by decriminalization, depenalisation, offense transformation or interpretation criminal law elements that impact on material criminal law or formal criminal law. Without any follow up by changing criminal legislation, espesially when it is related with legalty principle, law enforcement officer can rule out Constitutional Court verdict. The inconsistency of law enforcement can provoke law uncertainty and violate citizen rights

Pengakuan Kedudukan Hukum Masyarakat Hukum Adat Matteko dalam Pengujian Undang-Undang di Mahkamah Konstitusi Faiz Rahman
Jurnal Konstitusi Vol 18, No 3 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

The constitution states that as long as the customary law community unit and its traditional rights are still alive and in accordance with the development of society and the principles of the unitary state of the Republic of Indonesia, the state recognizes and respects it. However, many problems faced by indigenous peoples have made them aware of their rights, so they have tried several times to make their constitutional rights recognized by positive law. One of them is the Matteko customary law community who lives in Erelembang village, Tompobulu sub-district, Gowa district, South Sulawesi. In order to obtain customary land (forest/land) rights, indigenous peoples must receive recognition and receive recognition in the form of legal products. The purpose of this study was to determine the recognition of the Matteko customary law community in the examination of the Constitutional Court Law and to determine the legal position of the Matteko customary law community in the examination of the Constitutional Court Act. The research method used is empirical normative legal research with primary and secondary data types, where the data sources come from field data and literature. The results of this study are known so far, the Matteko customary law community does not have the legal standing to submit an assessment at the Constitutional Court because it cannot prove recognition as an indigenous community either in the form of a Regional Regulation or a Regional Head Decree. In fact, the legal position of customary law community units in judicial review at the Constitutional Court is clearly stated in the legislation, so that many customary law community units that have not received legal recognition from the state do not have the legal standing to apply for judicial review. Law in the Constitutional Court

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Kota adm. jakarta pusat,

Dki jakarta

INDONESIA