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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. 19 No. 4 (2022)" : 10 Documents clear
Perluasan Makna Partisipasi Masyarakat dalam Pembentukan Undang-Undang Pasca Putusan Mahkamah Konstitusi Chandra SY, Helmi; Irawan, Shelvin Putri
Jurnal Konstitusi Vol. 19 No. 4 (2022)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1942

Abstract

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 : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1949

Abstract

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.
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 : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1948

Abstract

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 : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1941

Abstract

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 : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1947

Abstract

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

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1945

Abstract

 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 : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1943

Abstract

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

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1944

Abstract

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.
Kedudukan Hukum Khusus dalam Pengujian Undang-Undang di Mahkamah Konstitusi Fitra Arsil; Qurrata Ayuni
Jurnal Konstitusi Vol. 19 No. 4 (2022)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk19410

Abstract

In general, the Constitutional Court has the view that political parties that have seats in the DPR and/or members of the DPR already have legislative space and do not have the legal standing to review laws. However, there are a number of exceptions in many cases where political parties and members of the DPR are considered to have a special position even though they are also discussing the passed laws. This paper discusses the jurisprudential pattern of the Constitutional Court in granting special legal status to political parties and members of the DPR. Using the case approach method in collaboration with the comparison method this paper seeks to map the potential for testing with specific constitutional rights. The findings in this paper reinforce the concept that although the results of law formation in the legislature and legal review in the judiciary are equally binding for citizens, the process of law formation and legal review has a different character and these differences are beneficial within the framework of checks and balances.
Isu Hak Konstitusional Masyarakat Desa Terhadap Kewenangan Pengawasan Pemilihan Kepala Desa Supriyadi Arief; Rahmat Teguh Santoso Gobel
Jurnal Konstitusi Vol. 19 No. 4 (2022)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1946

Abstract

The election of village heads (Pilkades) is the representation of democracy at the village level. Nevertheless, the supervision mechanism by the district/city level election committee (PPK) becomes problematic when the authority also coincides with the authority to operate. It is important to know the legal construction regarding the supervision of village head elections and the model of village head election supervision in the future. These will be analyzed normatively using a statutory approach, case approach, and concept approach. The results of this study show that Pilkades is an important process to actualize the Constitutional rights of communities, democracy and village autonomy. However, the regulations governing the pilkades are not in line with democratic values and the principle of free and fair election because of the unification of the authority to operate and supervise simultaneously at the Village Head Election Committee formed by the regional Head. Therefore, improvements to the supervision of the Pilkades in the future can be carried out with three models, namely: involving district/city Bawaslu, forming district/city Pilakdes Supervisors, direct supervision by district/city Bawaslu.

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