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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

The Legitimacy Death Penalty Application of Certain Conditions in the Anti-Corruption Law Rodes Ober Adi Guna Pardosi; Yuliana Primawardani
Jurnal Konstitusi Vol 19, No 3 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

This article discusses the imposition of the death penalty as stipulated in article 2 paragraph (2) of the Corruption Eradication Law for perpetrators of criminal acts of corruption that are deemed to be detrimental to the State and can have a wide impact on the lives of many people. In this case, there are many pros and cons related to the imposition of the death penalty as stipulated in article 2 paragraph (2) of the Corruption Eradication Law, especially in the sentence “Certain conditions” in that article which are related to the corruption of social assistance funds for handling Covid-19. Apart from that, this article is also considered to be against the Government’s obligations in the effort to respect, protect and fulfill human rights. This article concludes that this article cannot fulfill the juridical aspect of prosecuting corruption actors because it is not included in the requirements of “certain conditions” and is also considered unconstitutional because it is not in accordance with the constitution, which provides protection for a person’s right to life. The imposition of the death penalty has also been proven to be inappropriately used in eradicating corruption, as seen in the 2019 Corruption Perception Index.

The Proposal of Constitutional Complaint for the Indonesian Constitutional Court Nindry Sulistya Widiastiani
Jurnal Konstitusi Vol 19, No 3 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

The research focuses on the proposal of a Constitutional Complaint for the Indonesian Constitutional Court. The background causes of the constitutional weakness to protection and fulfilment of constitutional rights, especially the absence of a Constitutional Complaint mechanism. Research methods used normative legal research methods with statutory, analytical, and case approaches. The study results show that legal thinking, including an embodiment of the values of constitutionalism in the rule of law of Pancasila, complements a checks and balances system, the basis for protecting fundamental rights, and aims to realize good governance. There are several steps/ methods to giving this authority, amendments to the 1945 Constitution, non-original interpretations, and revision of the Constitutional Court Act. Several objects of dispute are the Court’s verdict, the problems of interpreting the 1945 Constitution and law by a state official, People Consultative Assembly decisions, and others.

Problematika Pengawasan Tindak Lanjut Putusan Bawaslu dan DKPP dalam Penegakan Hukum Pemilu Rofi Aulia Rahman; Iwan Satriawan; Marchethy Riwani Diaz
Jurnal Konstitusi Vol 19, No 4 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

Bawaslu is tasked with supervising the implementation of Bawaslu and DKPP decisions which must be followed up by KPU. The contrary of that during general elections in 2019 has created complications in the electoral law enforcement system. The research is focused to determine the legal certainty of follow-up to Bawaslu and DKPP decisions and form and scope of Bawaslu’s supervision of the follow-up. This is a qualitative descriptive analytical research with a normative and empirical juridical approach. The results indicate that in the implementation of Bawaslu and DKPP decisions is no legal certainty. The Constitutional Court have statement that the final and binding of DKPP decision applies to KPU, Bawaslu and President and its implementation is monitored by Bawaslu. The Bawaslu Regulation also does not accommodate in detail the mechanism for monitoring the follow-up, so it is necessary to have the regulation specifically.

Peran Mahkamah Konstitusi Mencegah Gejala Autocratic Legalism di Indonesia Miftah Faried Hadinatha
Jurnal Konstitusi Vol 19, No 4 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

The phenomenon of autocratic legalism has become a serious problem that threatens democracy. As the guardian of constitution, the Constitutional Court should be present to stop the spread of this phenomenon. This research has two objectives, first, to understand the autocratic legalism phenomenon and the spread of it. Second, to formulate what kind of role the Constitutional Court can play to stop the escalation of it. The research methods used are doctrinal. The results showed, firstly, autocratic legalism refers to the actions of a person who uses the law to legitimize his desire for power. This can be seen in several policies issued in Indonesia. Second, the way the Constitutional Court can stop the escalation of it by adopting the doctrine of unconstitutional constitutional amendment and judicial activism in the exercise of judicial review.

Eksistensi Kedudukan Peraturan Menteri terhadap Peraturan Daerah dalam Hierarki Peraturan Perundang-Undangan Juwita Putri Pratama; Lita Tyesta ALW; Sekar Anggun Gading Pinilih
Jurnal Konstitusi Vol 19, No 4 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

Ministrial Regulations as Legislative Regulations aren’t regulated in their position. This causes hierarchy confusion in the Ministerial Regulation faced with the Regional Regulation. This study aims to determine the hierarchy of regulation of Ministerial Regulations and the legal consequences that arise between it if they are mentioned in the hierarchy. This paper’s method is normative-juridical with descriptive analysis. This paper uses library research and interviews. The data analysis method used is qualitative analysis. The result of this research is that Law Number 12 of 2011 concerning the Establishment of Legislation doesn’t regulate Ministerial Regulations either being part of the hierarchy or from outside the hierarchy. Even so, viewed from the concept of a unitary state, ministerial regulations are part of the central level legislation. When the Ministerial Regulation is put up against the Regional Regulation, this has a number of legal effects.

Observing The Differences in Constitutional Court Decision About the Legal Age of Marriage Mia Hadiati; Febriansyah Ramadhan
Jurnal Konstitusi Vol 19, No 3 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

In 2014–2017, there were two tests of the same norms in the Marriage Law, namely the Constitutional Court Decision Number 74 / PUU-XII / 2014 and 22 / PUU-XV / 2017. However, there is a difference in the verdict between one judgment and the next. In Constitutional Court Decision Number 22/PUU-XV/2017, the Constitutional Court changed the previous stance that stated that the age limit norm was constitutional, changing it to unconstitutional, which led to the follow-up of the lawmakers to revise the Marriage Law. This study will compare judges' considerations in the decisions of Constitutional Court Number 74 / PUU-XII / 2014 and Number 22 / PUU-XV / 2017. It will be sought against the Constitutional Court's background changing its stance from one ruling to the next. This research uses normative research methods with a conceptual and philosophical approach to legislation. The results showed that the difference underlying the two rulings was in the excavation of legal sources by judges in their legal considerations.

Menakar Konstitusionalitas Penundaan dan/atau Pemotongan Anggaran Transfer ke Daerah dalam UU APBN M Beni Kurniawan
Jurnal Konstitusi Vol 19, No 4 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

Provisions regarding delays and/or withholding of transfers to regions by the Government in the APBN Law create problems when they are considered to create legal uncertainty regarding finances, which should be the domain of regional governments. This study aims to analyze: the constitutional urgency of the existence of a transfer budget to the regions from the center and the suitability of the sanctions for delaying and/or cutting budget transfers to the areas in the APBN Law. The study results show that transfers to the regions are a form of constitutional embodiment in the form of handing over financial resources to the areas as an actualization of effective fiscal decentralization. However, in practice, some regions do not comply with budget allocations, so the implications for regional financial management are not on target. On the other hand, the provision of sanctions for delaying and/or withholding funds transfers to the regions is in line with the financial construction of the unitary state with a decentralized system. This has also been strengthened through Constitutional Court Decision No. 5/PUU-XVI/2018.

Problematika Peraturan Mahkamah Konstitusi dan Implikasinya Adam Ilyas; Dicky Eko Prasetio
Jurnal Konstitusi Vol 19, No 4 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

The position of the Constitutional Court Regulation (PMK) in the hierarchy of laws and regulations is not strictly regulated, so it is not known where it is located, or which institution has the right to conduct a judicial review of it. Therefore, this study will examine three things, namely: (i) the position of PMK; (ii) the implications of PMK that have not been promulgated; and (iii) the institution entitled to conduct a judicial review of PMK. The research method used is the normative legal research method. The result is that PMK has a "conditional" position equivalent to a presidential regulation because it has the same function. Despite having the same "conditional" position, the PMK has so far not been able to be tested by any institution because it has not been promulgated in the State Gazette, which should also imply that it cannot bind the public. Therefore, PMK should be promulgated in the State Gazette to bind the public, and the institution entitled to examine it is the Supreme Court. That way, the parties to the proceedings at the Constitutional Court will obtain legal certainty and protection.

Relevansi Monisme dan Dualisme Bagi Pemberlakuan Perjanjian Internasional di Indonesia Intan Permata Putri; Rima Yuwana Yustikaningrum; Ananthia Ayu Devitasari
Jurnal Konstitusi Vol 19, No 3 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

The application of treaty is still influenced by different views on the approach chosen by Indonesia, whether monism or dualism. By using normative method, this study questions the relevance of monism-incorporation and dualism-transformation approaches in determining the application of treaty. Two key aspects will be reviewed, namely parliamentary approval and the drafting of national regulations to implement treaty. It concludes that the dichotomy of monism and dualism has various limitations, and is irrelevant for determining the application of treaty. Parliamentary approval is required for treaty application, both in monist and dualist countries. Several dualist countries have even sought parliamentary approval before ratification can take place. The formulation of national regulations is common in monist and dualist countries. Not to fulfill theoretical demands in line with the monism and dualism approaches, but to ensure harmonization and the ability of state to carry out its obligations.

Evaluasi Proses Amendemen Undang-Undang Dasar Tahun 1945: Perspektif Habermasian Costantinus Fatlolon
Jurnal Konstitusi Vol 19, No 4 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

This article evaluates the amendment process of the 1945 Constitution conducted by the MPR from 1999 to 2002. The theoretical framework used is Jürgen Habermas’s theory of law and democracy. By employing an expositive-critical-reconstructive approach, this article argues the amendment of the 1945 Constitution was inclusive but not participatory because the process was more dominated by the MPR and it did not include the active participation of ordinary citizens, including civil society groups, the mass media, and radical groups in the society. The remedy to this problem is for the MPR to institutionalize ideal conditions of deliberative democracy that grant publicity, transparency, civic participation, and rational communication between the executive body and citizens in every phase of the constitutional amendment process.

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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