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INDONESIA
Jurnal Konstitusi
Published by Pusat Penelitian dan Pengkajian Perkara dan Pengelolaan Perpustakaan Mahkamah Konstitusi Republik Indonesia
ISSN : 18297706     EISSN : 25481657     DOI : https://doi.org/10.31078/jk1841
Core Subject : Humanities, Social,
Humanities Law, Crime, Criminology & Criminal Justice
The aims of this journal is to provide a venue for academicians, researchers and practitioners for publishing the original research articles or review articles. The scope of the articles published in this journal deal with a broad range of topics in the fields of Constitutional Law and another section related contemporary issues in law.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 10 Documents
 1 
Search results for , issue "Vol 13, No 1 (2016)" : 10 Documents clear
Kejanggalan Beberapa Putusan Korupsi Pengadaan dan Kaitannya dengan Konstitusi Wibowo, Richo Andi
Jurnal Konstitusi Vol 13, No 1 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (433.334 KB) | DOI: 10.31078/jk13110

Abstract

This paper aims at highlighting some odd court decisions on corruption typed “state financial loss” in public procurement sector. It is odd because of the following reasons: (i) the nature of the case is more about administrative or private law instead of criminal law; (ii) some consider that it will be unjust to sentence guilty the accused; (iii) the cases ensnare persons who are perceived as reformist and clean. The first point will be the focus of elaboration. It will be argued that the encroachment of criminal law towards the area of administrative and private laws are caused by the lower standard of proof for the corruption typed “state financial loss”. Currently, the applied standard is “more likely than not” instead of “beyond reasonable doubt”. The situation which some people are jailed while their faults are more about administrative and private is a justice issue. As the upright of justice is the mandate of the constitution, therefore, articles that create this injustice (Article 2 section (1) and Article 3 of the Eradication Corruption Act) should be re-reviewed by the Constitutional Court. Although the court has previously reviewed the Articles and, therefore, this should be seen as a final and binding; this paper will give some arguments which explain the needs for the court to re-settle this matter.
Rekonstruksi Kewenangan Penyelesaian Perselisihan Hasil Pemilihan Umum Harun, Refly
Jurnal Konstitusi Vol 13, No 1 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (426.258 KB) | DOI: 10.31078/jk1311

Abstract

Construction of authority in the settlement of dispute over the result of local election is still in transformation to become the ideal format. At the same time, the authority in the settlement of election dispute which is distributed to many agencies is also demanding simplification. The fact requires that there must be reconstruction on the settlement of all kinds of legal problems in election, including the dispute over local election results. Related to this, one of the proposals offered through this paper is the simplification of settlement system and the courts involved in the settlement of disputes. Where, for the settlement of disputed election results remain under the authority of the Constitutional Court, while the settlement of election disputes, local election disputes and disputes over the results of local election are handled by a special election court. The role of the election court referred to will be run by the Election Supervisory Body which will transform into a special election court.
Refleksi Fenomena Judicialization of Politics pada Politik Hukum Pembentukan Mahkamah Konstitusi dan Putusan Mahkamah Konstitusi Perwira, Indra
Jurnal Konstitusi Vol 13, No 1 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (417.666 KB) | DOI: 10.31078/jk1312

Abstract

This paper aims  to  introduce  the  phenomenon  of  judicialization  of  politics in the treasury of  legal  thought  in  Indonesia.  In  addition,  this  paper  also  aims to reflect the presence of judicialization of politics in the  Constitutional  Court, either through legal policy  on  establishment  of  constitutional  court  or  through its decisions. Theoretically, the phenomenon of judicialization of politics began to be known at the beginning of the 21st century characterized by the dependence of society to the court to resolve the issues related to morality, public policy, and political controversies. The presence of judicialization of politics can be reflected from the shift in the political settlement of the case which was originally made through political mechanisms to the settlement through a judicial mechanism. To see the phenomenon, this paper will explore the legal policy on establishment of the Constitutional Court. Through a historical perspective on the establishment, this paper would like to indicate that, in nature, the Constitutional Court is a political institution. In addition, this paper also analyzes the Constitutional Court decision in the case of judicial review on “Perpu” of the Corruption Eradication Commission (KPK) and the decision regarding the dispute Election East Java province in 2008,  to show that the phenomenon of judicialization of politics has lived and practiced  in the Constitutional Court as well.
Hermeneutika Hukum: Prinsip dan Kaidah Interpretasi Hukum Weruin, Urbanus Ura; Andayani B, Dwi; Atalim, St.
Jurnal Konstitusi Vol 13, No 1 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (395.068 KB) | DOI: 10.31078/jk1315

Abstract

This legal hermeneutic article efforts to explore and formulates norms, rules, principles, standards, and criterions that must be referenced in order to understand, analyze, interpret, and explicate the intention and complexities meaning of legal texts, not only according to literary meaning but also to reveal the whole meaning  of pratices and outcome of the legal adjudication. These norms, rules, and principles link to primary or general priciples, attitudes and goodwill of intepreter, aim of interpretation, interest of people, structure of legal system, character and role of interpreter, and how to undestand and treate legal noms as text. This bibliographical study and empiris research article find out the meaning, history, and aplication of legal hermeneutic in practices of adjudication. One case from legal adjudication (court dicision) will be analysed here according to principles of legal hermeneutic.
Politik Hukum Pengelolaan Sumber Daya Alam Menurut Pasal 33 UUD 1945 Rachman, Irfan Nur
Jurnal Konstitusi Vol 13, No 1 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (394.13 KB) | DOI: 10.31078/jk1319

Abstract

Indonesia which is located in southeastern asia has a lot of natural resources. This situation has made indonesia was one of the purpose of foreign capital investment especially the mining sector, besides the forestry sector, and water resources management. It was because the lack of our country in managing the source of natural resources, good of the aspect of capital, aspects human resources, and facets technology. As a result of natural resources that we have not can be used to welfare of the people maximally.Ironically, our country having of natural resources, but contributed the most to state budget (APBN) not from the results of the management of natural resources, but of tax sector. Hence in managing natural resources in indonesia need to consider article 33 constitution 1945 containing the political legal in the management of natural resources, so the purpose of natural resources to public welfare can be achieved maximally.
Problem Penemuan Kebenaran dalam Putusan Mahkamah Konstitusi Wibowo, Mardian
Jurnal Konstitusi Vol 13, No 1 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (489.985 KB) | DOI: 10.31078/jk1317

Abstract

Every effort of discovering the truth always faced with the possibility to slip. This possibility of slips also occurs in the Constitutional Court Decisions, specifically one which strongly related to material truth, such as in the decision related in dispute  of local general election result. Based on that certainty, this paper  attempts  to study the problems that could arise whenever the Constitutional Court manage to discover the truth, while also tries to present alternatives in the attempt to repair the aforemention slips.
Refraksi Yuridis Penetapan Program Legislasi Nasional di DPR RI Fajriyah, Mira
Jurnal Konstitusi Vol 13, No 1 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (505.664 KB) | DOI: 10.31078/jk1313

Abstract

Prolegnas is a law developmental transformation after the amendment of UUD NRI 1945. However, the effectuation of Prolegnas’s decree by DPR RI always shows the less of law reformation level, either on qualitative measure or the quantitative. This research has a focus to arrange a law prescription of juridical refraction on  the effectuation of Prolegnas’s decree by DPR RI. The research explains the peak of trouble of the effectuation of Prolegnas’s decree, consists of low level of consistency and realization, the incompatibility between Prolegnas’s substances and mandated by legislation and the list of draft bill which not based on an academic research. Those are a logical clause of two juridical refraction stages, viz, formal concession and substance concession (prospective  orientation).
Fenomena Calon Tunggal dalam Pesta Demokrasi Rumesten RS, Iza
Jurnal Konstitusi Vol 13, No 1 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (399.075 KB) | DOI: 10.31078/jk1314

Abstract

Concurrent local elections to be held in December 2015, characterized by the dynamics of democracy and new political dynamics. Dynamics it is the birth of a single candidate in several areas that will carry out the election. It is on the one hand shows that the dynamics of democracy in the country increasingly show progress and our society is increasingly “literacy” and political savvy, but on the other hand it raises a new problem, namely whether the elections will be postponed or published decree. This happens because the legislators did not expect the birth   of a single candidate. This fact shows that the lawmakers have not been able to make laws that meet the philosophical and sociological aspects of that legislation was well received presence in the midst of society without conflict and live longer. Because it is common to occur in Indonesia legislation only whole corn.Issues to be addressed in this study is what legal remedies in the face of a single candidate and how the legal steps to prevent the birth of a single candidate in the elections. This study is a normative legal research, using qualitative juridical analysis. The result showed that the legal solutions that can be done to deal with a single candidate is  to 1). Exposes a single candidate with an empty tube, 2). Delay the election until   the election outright in 2017. 3). Published the decree. While the legal steps that  can be taken to prevent the birth of a single candidate is 1. Revise election laws, by adding specific chapter or article concerning a single candidate, 2. Increasing political education for the public and political party cadres and prepare the mature cadre in the party’s  internal.
Politik Hukum Pengujian Peraturan Perundang-Undangan dalam Penyelenggaraan Negara Triningsih, Anna
Jurnal Konstitusi Vol 13, No 1 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (408.643 KB) | DOI: 10.31078/jk1316

Abstract

Legislation or commonly called the law is a  political  product.  Politics  is  a field in the society which relate to public goals, and the law as one of the fields in society is always linked to the goals of society. Because of being associated with these objectives, the law has its own dynamics side. In its socio-political dynamics there is always a message that wants to be heard, known, understood, and then executed by the addressee, which is the organizer of state power, political power holders. In the perspective of constitutional law that  message  then  becomes  a  goal in organizing the state and then organized into a political structure as the procedures in the administration of the state in order to reach the goal of the state. The meaning of a more democratic state administration and based on law as a goal in the amendment of the 1945 Constitution was to provide a constitutional basis, (i) equal relationship between state and society based on rights and obligations in reciprocal nature; (ii) the equal relationship between state institutions based on checks and balances system; (iii) strengthening the independence and impartiality of judicial authority to guard the running of the legal and constitutional system. Review of egal products in state administration through judicial mechanism aims to provide a guarantee for the implementation of these relationships and the running of the legal and constitutional system in accordance with the 1945 Constitution.
Masalah Eksekutabilitas Putusan Mahkamah Konstitusi oleh Mahkamah Agung Suhariyanto, Budi
Jurnal Konstitusi Vol 13, No 1 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (399.155 KB) | DOI: 10.31078/jk1318

Abstract

Normatively constitutional court and supreme of court has on equal position with a different authority. However, there is a relationship of authority and point of contact. Morever, potential to cause disharmony on law enforcement. For example, on implementation of the constitutional court’s decision directly followed by the decision of the supreme court but some others not. The constitutional court’s decision characteristic are final and binding general (erga omnes), at the same level with legislation (negatif legislator), undirectly binding and enforced by the supreme court. Fundamentally, judge at the supreme court and the courts below is not a mouthpiece of the law, therefore it has some authority to interpre the statute (was also againts the decision of the constitutional court) to be applied on cases they handle. Although the judges decision of the supreme court do not decide on the validity and constitutionality of the norm, but through the efforts of the discovery  or the interpretation of the law can gives an effect to the law enforcement and the establishment of a progressive and responsive legal reform.

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