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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

86 87 88 89 90

Anomali Asas Non-Retroaktif dalam Kejahatan Genosida, Bertentangan dengan HAM? Nurhidayatuloh Nurhidayatuloh; Akhmad Idris; Rizka Nurliyantika; Fatimatuz Zuhro
Jurnal Konstitusi Vol 19, No 2 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

The crime of genocide is one of the most serious international crimes stipulated in the Rome Statute. Previously, genocide was regulated in the Convention on Genocide entered into force on 12 January 1951. The convention and the Rome Statute do not allow retroactivity. However, retroactivity appears in the Indonesian Law on the Human Rights Court and is strengthened through the Indonesian Constitutional Court's Decision. This study focuses on the neglect of the non-retroactive principle in the Law on Human Rights Courts and the extent to which the retroactive period. This research uses normative-legal method with a statutory and case approaches. The result shows that ignoring the non-retoactive principle is contrary to international law and international human rights regulations. Hence, the Constitutional Court's decision that strengthens retroactivity can be interpreted that the Court maintains human rights while at the same time violates human rights by not accurately interpreting the word “derogation” and “restriction” in Article 28J of the 1945 Constitution.

Penerapan Klausul Bersyarat dalam Putusan Pengujian Formil Undang-Undang Faiz Rahman
Jurnal Konstitusi Vol 19, No 2 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

Constitutional Court Decision No. 91/PUU-XVIII/2020 became the first formal review decision granting the submission and using a conditionally unconstitutional model. Slightly different from material review, in a formal review, what is declared unconstitutional is the procedure. Consequently, it affects the differences in applying conditionally clauses in a formal review. This research explores the conditionally clauses model used in formal review and its implication. Furthermore, this research illustrates those three clauses are likely always accompanied the conditionally unconstitutional ruling, namely: order to lawmakers to revise the law-making process in a specific period; statement regarding the transitional period of the enforcement of the Law; and statement that the Law will become permanently unconstitutional if no changes are made. Nevertheless, considering the design of formal review in the Constitutional Court Law and implications of conditionally decision in formal review, the appropriateness of conditionally decision model for formal constitutional review need to be reconsidered.

Teori Utilitarianisme Jeremy Bentham: Tujuan Hukum Atau Metode Pengujian Produk Hukum? Endang Pratiwi; Theo Negoro; Hassanain Haykal
Jurnal Konstitusi Vol 19, No 2 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

Utility as a legal purpose has become a belief in Indonesia. In his literature, Bentham implies that utility are the dimension of the calculation of pleasure and pain, which is more appropriate to be used as a method of evaluating laws and regulations, rather than for legal purposes. This study tries to dissect the concept of Bentham's utilitarianism theory, and to find its position in the facet of legal thought. The conclusion of this study explains why utility is not a legal purpose. Utility is part of the calculation variables for evaluating legal product evaluation methods, so as to determine whether legal certainty in a legal product is sustainable or not. Furthermore, Bentham's theory of utilitarianism takes the separability thesis and the reductive thesis, as its standpoint of legal positivism, therefore Bentham's utilitarianism theory is not an independent school of thought, but a facet of legal positivism

Relevansi Teori Oplossing dalam Penanganan Sengketa Terkait Keputusan Pengadaan Barang dan Jasa Pemerintah Paulus Rudy Calvin Sinaga; Anna Erliyana
Jurnal Konstitusi Vol 19, No 2 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

The Indonesian State Administrative Court has applied the oplossing theory, where claims related to disputes over the procurement of government goods or services are considered to be merged in the civil realm so that they are assumed to be not authorized to handle the dispute. This research is normative juridical research by comparing the practice of handling cases of government procurement of goods and services in the Indonesian State Administrative Court, the Constitutional Court, and the French Administrative Court. Research shows that there are inconsistencies in the Indonesian state administrative court regarding the interpretation of the oplossing theory after the enactment of Law Number 30 of 2014 concerning Government Administration, while in France, the plaintiff can file a lawsuit in the form of annulment of administrative decisions related to the procurement of government goods and services or a compensation claim. The implication of eliminating the oplossing theory is that a third party can file a claim for compensation against a dispute over the procurement of government goods and services in the state administrative court in accordance with the Constitutional Court Decision Number 22/PUU-XVI/2018 regarding the grace period for filing a lawsuit by a third party.

Konsistensi Pembuatan Norma Hukum dengan Doktrin Judicial Activism dalam Putusan Judicial Review Bagus Surya Prabowo; Wiryanto Wiryanto
Jurnal Konstitusi Vol 19, No 2 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

This study intends to explain the consistency of the Constitutional Court (MK) in making new legal norms by using the doctrine of judicial activism and to explain the factors that underlie the consistency of the Constitutional Court in making new legal norms through normative juridical research by explaining the principles, principles, and analysis of interrelated decisions. This study concludes that the Constitutional Court is inconsistent because it only grants and makes new legal norms in the Constitutional Court Decision Number 5/PUU-V/2007. Meanwhile, in the Constitutional Court's Decision Number 53/PUU-XV/2017, the Constitutional Court refused to make a new norm even though the two cases created discrimination and limited public participation in politics. The inconsistency factors include: 1) jurisprudence factors, 2) the application cannot convince the majority of the judges of the Constitutional Court, and 3) the paradigm factor of judges.

Peran Mahkamah Konstitusi dalam Perlindungan Hak Pilih dalam Negara Hukum Demokratis Agusniwan Etra
Jurnal Konstitusi Vol 19, No 2 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

The involvement of ex-convicts in political contests sparked a discourse on human rights and their protection by the Constitutional Court. This paper will answer constitutional dynamics of these rules through the decisions of the Constitutional Court. This research uses normative-legal method. The result shows that since the beginning, the regulation has been declared conditionally unconstitutional, but the requirements and implementation of it have developed in subsequent decisions. The Court has determined four constitutional requirements cumulatively in the form of not being revoked by a court decision; limited to a period of 5 (five) years; admits being a former convict openly and honestly; and not as a recidivist. The Court changed its stance that the requirement applies alternatively if there is an honest and open acknowledgment as an ex-convict, then other conditions are no longer needed. However, in its final decision, the Court restored the validity of the previous four cumulative conditions.

Perluasan Makna Partisipasi Masyarakat dalam Pembentukan Undang-Undang Pasca Putusan Mahkamah Konstitusi Dian Ayu Widya Ningrum; Al Khanif Al Khanif; Antikowati Antikowati
Jurnal Konstitusi Vol 19, No 4 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

Public participation is intended the idea of forming laws and regulations does not always have to come from the power holders only, but can emerge from the society. This paper aims to determine the impact of the Constitutional Court’s decision Number 91/PUU-XVIII/2020 on the formation of laws in Indonesia, especially in accommodating public participation which is limited to two main issues. First, how is the form of expanding the meaning of public participation in the Constitutional Court’s decision Number 91/PUU-XVIII/2020. Second, what is the impact of expanding the meaning of public participation in the formation of laws. This doctrinal legal research uses secondary data. The results of the study show that the form of expanding the meaning of public participation in the Constitutional Court’s decision Number 91/PUU-XVIII/2020 is carried out in a meaningful way, by providing guarantees of participation for affected communities and the impact of expanding the meaning of public participation in the formation of laws, namely changing the paradigm of law formation, improvement of regulations and strengthening of public participation as a basis for formal testing.

Positive Legislature dalam Putusan Mahkamah Konstitusi Mengenai Upaya Hukum Putusan Penundaan Kewajiban Pembayaran Utang Catur Alfath Satriya
Jurnal Konstitusi Vol 19, No 4 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

Constitutional Court as negative legislature as time goes by has become positive legislature, recently Constitutional Court verdict Number 23/PUU-XIX/2021 regarding Articel 235 examination from Bankruptcy Law and Debt Payment Postponement (PKPU) toward Indonesia’s Constitution (UUD NRI 1945), considered to cause constitutional losses because it does not regulate the existence of legal remedies against the PKPU verdict. This research aims to analyze the Judges consideration (ratio decidendi) of the Constitutional Court’s verdict regarding the legal remedies of PKPU verdict in accordance with the principles of justice and legal certainty and to analyze the enforcement of the Constitutional Court verdict regarding the legal remedies for the PKPU verdict which are positive legislation. This article used normative legal research method. The results of the study show that the progressivity in constructing the legal remedies in PKPU verdict with certain conditions (Conditionally Unconstitutional). The Constitutional Court’s decision which is final and binding in its implementation is not in accordance with the theory. It should be realized that in a decision that is self-executing, it still requires bureaucratic procedures to address the decision so that it can be implemented consistently in accordance with the principle of erga omnes.

The Relationship between DKPP and PTUN Decisions regarding Ethical Violation by General Election Administrators Ahmad Siboy; Dewi Cahyandari
Jurnal Konstitusi Vol 19, No 3 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

The commissioner of the general election administration was discharged through the decision of the General Election Administrator Honorary Council (DKPP). The decision is not final and binding at the executive branch, considering that the decision can be cancelled by the Administrative Court. This study aims to define the authority of DKPP and PTUN in resolving ethical violations committed by election administrators and parse the implications and relationships of the decisions of the two institutions. This paper also proposes an ideal concept for the design of solving ethical violations of election administrators in the future. This study uses normative juridical methods. The results showed that the DKPP and PTUN have overlapping authority but with different decisions. DKPP purely adjudicates ethical issues, and the Administrative Court adjudicates the Presidential Decree, which is a follow-up to the DKPP decision. To avoid conflicting decisions on cases that intersect, violations of the code of ethics in the future must be resolved with a settlement mechanism by the judiciary.

The Absence of Constitutional Court’s Decision Follow Up: Is it A Loss? Vera Wheni S. Soemarwi; Yeremia Wijaya; Arthuro Richie Gunawan
Jurnal Konstitusi Vol 19, No 3 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

The establishment of the Constitutional Court as the guardian of constitution that protects the citizens’ human rights gives hope for the implementation of “rule of law” principle. The Constitutional Court is expected to play a big role in upholding and protecting the citizens’ constitutional rights through each of its decisions. This expectation has become meaningless since Article 59 (2) of Law Number 8/2011 is declared to have no binding legal force by the Constitutional Court Decision Number 49/PUU-IX/2011. What are the impacts of the elimination of Article 59 (2) which has been formulated in Law Number 7/2020? This research is socio legal studies that uses secondary data that are collected through literature study. The elimination of Article 59 (2) in Law Number 7/2020 shows violation of the rule of law principles. In addition, the legislation products which are legitimized based on Law Number 7/2020 are unable to guarantee the citizens’ constitutional rights.

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Contact Name
-

Contact Email
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Journal Mail Official
jurnalkonstitusi@mkri.id

Editorial Address
Jl. Medan Merdeka Barat No. 6. Jakarta 10110

Location
Kota adm. jakarta pusat,

Dki jakarta

INDONESIA