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Jurnal Konstitusi dan Demokrasi
  • publication:jurnalkonsdem
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Published by Universitas Indonesia
ISSN : -     EISSN : 28089715     DOI : 10.7454/JKD
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
Jurnal Konstitusi dan Demokrasi adalah Jurnal Ilmiah di bidang Hukum Tata Negara yang terbit sebanyak satu kali setiap tahunnya pada bulan Oktober. Jurnal Konstitusi dan Demokrasi diterbitkan oleh Bidang Studi Hukum Tata Negara Fakultas Hukum Universitas Indonesia. Jurnal ini berisi tulisan hasil penelitian dan pemikiran di bidang hukum tata negara serta isu yang mencakup pemilihan umum, hak asasi manusia, kekuasaan kehakiman, lembaga perwakilan rakyat, dan isu hukum tata negara lainnya.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 45 Documents
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Kebebasan Beragama Dan Berkeyakinan Dalam Negara Hukum Indonesia: Dualisme Tafsir Konseptual Dan Putusan Mahkamah Konstitusi Sanjaya, Dixon; Rahim, Akhlish Aulia
Jurnal Konstitusi & Demokrasi Vol. 4, No. 1
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Abstract

Religious life in Indonesian state of law is still faced with friction and instability. This is due to dualism of interpretation of constitutional norms, differences in human rights perspectives on the freedom of religion and belief, and conflicts over statutory regulations. This research analyzes the concept of freedom of religion and belief (Religious Freedom) by conceptually exploring the discourse on relationship between religion and state and mapping the Constitutional Court's decision on commitment of the Religious Freedom. Normative juridical research is carried out using case, historical, and conceptual approaches. The finding is that relationship between state and religion is conceptually dichotomous between the ideas of the founding fathers who wanted limited separation and the ideas of legal experts in modern era who wanted a more active role for the state towards religion in administering the state. These two concepts result in religious fragmentation in society which underlies the dominant attitude of majority over minorities. Meanwhile, Constitutional Court's commitment to Religious Freedom experienced a dualism between strong commitment (judicial activism) and weak commitment (judicial restraint) which resulted in the realization of freedom of religion and belief facing systemic and cultural problems that couldn’t be realized optimally. A paradigm shift is needed from Constitutional Court, government, and society to act independently and move away from majority perspective to present meaningful concept of equality for Religious Freedom with an understanding of moderation and religious pluralism not based on narrow fanaticism.
Analisa Yuridis Independensi Komisi Pemberantasan Korupsi sebagai Lembaga Ekstra Konstitusional dalam Sistem Ketatanegaraan Indonesia Farida, Alchansyah
Jurnal Konstitusi & Demokrasi Vol. 4, No. 1
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The Corruption Eradication Commission (KPK) was formed as a follow-up to the mandate of Article 43 of Law Number 31 of 1999 concerning the Eradication of Corruption Crimes. The Corruption Eradication Commission exists as an answer to the less than optimal performance of the Police and Prosecutor's Office in eradicating corruption. Apart from that, the Corruption Eradication Commission exists as an independent state institution (not tied to any authority, be it executive, legislative or judiciary). However, after the enactment of Law Number 19 of 2019 concerning the Second Amendment to Law Number 30 of 2002 concerning the Corruption Eradication Commission, it had a huge influence on the KPK institution. The principles of independence of the Corruption Eradication Commission as characterized as a corruption eradication institution are increasingly being lost, the Corruption Eradication Commission has limited room for movement and is under executive power.
Konstitusionalitas Proses Pemilihan Kepala Otorita Ibu Kota Nusantara Berdasarkan Undang-Undang Nomor 3 Tahun 2022 tengan Ibu Kota Negara Subandi, Riskayati
Jurnal Konstitusi & Demokrasi Vol. 3, No. 2
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The establishment of the Government of the Special Territory of the Capital of Nusantara (Special Regional Government of IKN) as the location of the new capital of Indonesia has raised controversy, especially as regards its position as the special regional government held by the Nusantara Capital Authority Institution (IKN Authority), as well as the differences in the process for selecting government heads. The research was conducted using a normative jurisprudence method that focuses on the analysis of secondary data to determine the constitutionality of regulations relating to the position and process of election of the head of government in the Capital of Nusantara. Special Regional Government of IKN is distinct from other regional administrations because it has special status at the provincial level. Several countries grant equivalent status to their national capitals, including the United States, Australia, Canada, and the Czech Republic. In the federal government, it aims to authorize intervene in managing the national capital and ensure that the federal government remains neutral in taking of national policies. In contrast to a unitary state, which has just one sovereign and one legislature, which regional governments must also follow the law ot the state. The specialty of the Special Regional Government of IKN managed by the IKN Authority, as well as the mechanism of election of the Head of the Authority through the appointment mechanism established by the President after consulting the House, is deemed to be contrary to the Constitution. This is due to the fact that the current process does not reflect the regional democratization system, which has become the demand for reform, as stated in the Republic of Indonesia's 1945 Constitution. Aside from that, the applicable laws and regulations cannot guarantee accountability in the execution of each process.
Kompetensi Absolut dan Aktivisme Yudisial dalam Peran Mahkamah Agung Menguji Anggaran Dasar Partai Politik di Indonesia Kurniawan, Denis
Jurnal Konstitusi & Demokrasi Vol. 4, No. 1
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This article examines the necessity for the Supreme Court to extend its absolute competence in conducting judicial reviews (right to judicial review) of the Articles of Association and/or Bylaws of Political Parties, which serve as the object of review (objectum litis). This article was prepared by doctrinal research methods. Political parties are institutions that are known for their existence, authority, and constitutional dissolution through the 1945 Constitution. As such, the Articles of Association and Bylaws of Political Parties can be defined as regulations that are established by a Political Party based on orders from higher legal norms, namely the law. It is imperative that the content and procedures for the formation of political parties do not conflict with the legal norms. Accordingly, in the event of a discrepancy between the Articles of Association and/or Bylaws of a Political Party and higher statutory regulations, the Supreme Court, as a judicial control institution, is responsible for determining the validity of the legal norm. The request for a review of amendments to the 2020 Democratic Party's Articles of Association and/or Bylaws, as presented in case Number 39 P/HUM/2021, was not addressed by the Supreme Court in a comprehensive manner. A review should have been conducted in a gradual manner, through the implementation of legal innovations (i.e., rule-breaking measures) aimed at safeguarding the constitutional rights of citizens, which have been disregarded and violated by the enactment of a political party's articles of association and/or bylaws.
Analisis Perbandingan Pengaturan Ibu Kota dalam Konstitusi Global: Pelajaran bagi Ibu Kota Baru Indonesia Jaya, Akbar Arta
Jurnal Konstitusi & Demokrasi Vol. 4, No. 1
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Abstract

On August 16, 2019, the President of the Republic of Indonesia, Joko Widodo, delivered a state speech ahead of Indonesia's Independence Day commemoration, in which the plan to move the national capital to Kalimantan was presented. The relocation of the capital city in a country has various motives, including the location of the previous capital city which is vulnerable to threats from other countries, the development of new cities, and increasing economic growth. This research was conducted to see how the constitutions of countries in the world, especially in 25 countries in the Asian continent (11 Southeast Asian countries, 7 South Asian countries, and 6 East Asian countries) as well as 12 Latin American countries, 7 Central America, 5 European countries (England, France, the Netherlands, Spain, and Portugal), and 2 superpowers namely the United States and Russia, regulate the capital city. The research method used is normative juridical, with a comparative approach. Through this approach, the author conducts research by comparing 2 (two) or more countries' constitutions in regulating the capital city. From the results of the research, the author found that there are 33 countries that regulate the capital city in their constitutions. This number is quite a lot, which is 66% when compared to 17 countries or 34% that do not regulate the National Capital. In the final section, the author recommends that Indonesia can follow model 1 and model 2 in a limited way, considering that currently Indonesia has been trying to successfully move the National Capital to Kalimantan.
Kajian Komparatif tentang Pengaturan Pelindungan Budaya dalam Konstitusi Negara-Negara Asia Pasifik Collins, Josua Satria
Jurnal Konstitusi & Demokrasi Vol. 4, No. 2
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Culture is a fundamental element in shaping national identity and unity amidst diversity. Therefore, many countries incorporate cultural protection into their constitutions to ensure the sustainability of cultural heritage. The constitution not only serves as a legal foundation but also as a social engineering instrument to facilitate cultural development amid contemporary challenges. This study focuses on the Asia-Pacific region due to its high cultural diversity and the complex interaction between local traditions and globalization. Using a normative juridical method and a comparative approach, the study analyzes 54 constitutions from countries in the region. The findings indicate that the majority of these countries include constitutional provisions related to culture, following three main trends: (1) representation of cultural practitioners in parliament, (2) preservation of cultural and historical sites, and (3) guaranteed access to cultural education and research. Compared to Indonesia, some countries have more detailed regulations regarding the protection of historical sites and support for cultural research and education. This study recommends strengthening cultural protection in Indonesia’s constitution by adopting best practices from other countries, ensuring more effective preservation of national identity and cultural advancement in the face of globalization.
Studi Komparatif Konstitusi di Indonesia dan Timor Leste : Analisis Aspek Inherent, Konstitusionalisme dan Pemilihan Umum Presiden Fauziyah, Qothrunnada uni
Jurnal Konstitusi & Demokrasi Vol. 4, No. 2
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A comparison of the constitutions between Indonesia and East Timor provides an interesting insight into how the two countries, which have different historical and cultural backgrounds, formulate their legal and political frameworks. Indonesia, as a country that has been independent since 1945, has a constitution that has undergone several amendments and changes along with political and social developments. On the other hand, East Timor, which gained independence in 2002 after decades of conflict and colonization, 24 years of integration with the Republic of Indonesia and has a newer Constitution and is still in the early stages of development. Another important aspect that is interesting to analyze is related to the presidential election. Indonesia, since the amendment of the 1945 Constitution, applies the presidential election system directly by the people, with a maximum limit of two terms of office. In East Timor, the people voted in a presidential election that was seen as a test of the country's democracy. Although the president's authority is very limited and tends to be a ceremonial position, East Timor's presidential election remains a very important and decisive event for the young country. The method used in this study is juridical normative approach to legislation (statute approach), historical approach (historical approach) and conceptual approach (conceptual approach). A comparative study of the constitutions of Indonesia and East Timor, focusing on inherent aspects, constitutionalism and presidential elections, provides a rich overview of the constitutional dynamics in two major countries with different historical and socio-cultural backgrounds. Thus we can draw important conclusions for the development of a better theory and practice of constitutionalism later. Keywords : Constitution, Inherent Aspects, Presidential Election, Indonesia, Timor-Leste
Perlindungan Hak Kotak Kosong pada Pilkada Berdasarkan Undang-Undang Pilkada Hardiansyah, Thoriq
Jurnal Konstitusi & Demokrasi Vol. 4, No. 2
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Simultaneous elections in 2024 will be held as a whole, both legislative and executive. The implementation of Regional Head Elections, namely Governors, Mayors and Regents, has created its own phenomenon. This is due to the lack of political participation such as fat coalitions which result in the presence of the majority of single candidates in several regions dominated by incumbents. The opponent available on the ballot paper is an empty box. This certainly does not provide satisfaction to the community to be able to choose the candidate they will vote for so that a new phenomenon emerges, namely Empty Box Voters. In this study, the extent to which the state interprets substantive justice through the democratic party. The results of this study reveal that the Protection of Empty Box Voters and the Urgency of the presence of empty boxes can still be considered as the protection of Human Rights.
Menakar Kekuatan Mengikat Putusan Mahkamah Konstitusi dalam Pemberhentian Presiden dan/atau Wakil Presiden di Indonesia Efendi, Sunarto; Sterigma, Sylli Meliora; Mappuna, Nur Alfitra
Jurnal Konstitusi & Demokrasi Vol. 4, No. 2
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Impeachment is a mechanism that allows for the dismissal of a President and/or Vice President before the end of their term. In countries that adopt a presidential system, such as Indonesia, the process and mechanism of impeachment are crucial to regulate, considering the possibility that the President and/or Vice President may commit serious violations or no longer meet the qualifications to regulate a country. This study examines the process and mechanism of dismissing the President and/or Vice President in Indonesia, as well as the ideal framework for such a process. Using a doctrinal legal research method with secondary data from literature studies, the findings show that Indonesia’s impeachment mechanism consists of two stages: a “political process” and a “legal process.” The legal process takes place in the Constitutional Court (MK), where the Court examines, adjudicates, and issues a decision based on the House of Representatives’ (DPR) request for an opinion regarding the impeachment of the President and/or Vice President. However, the Court’s ruling in this matter contradicts the principle of erga omnes—a fundamental characteristic of Constitutional Court decisions—since, in the next stage, there is no obligation for the People’s Consultative Assembly (MPR) to implement the ruling. Therefore, constitutional reforms are needed to strengthen Indonesia’s impeachment process by requiring the People's Consultative Assembly (MPR) in Indonesia to comply with and execute the Constitutional Court’s decision regarding the dismissal of the President and/or Vice President.
Teori Kemaslahatan Sebagai Batasan Judicial Activism Dalam pengujian undang-undang oleh Mahkamah Konstitusi Alatas, Ali; Zulfickar, Ficky M; Hutabarat, Patio Alfredo Nugraha
Jurnal Konstitusi & Demokrasi Vol. 4, No. 2
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In this paper, the concepts of judicial activism and judicial restraint are discussed as the way the Constitutional Court (MK) tests laws against the 1945 Constitution of the Republic of Indonesia (UUD 1945). Active judges can do new things to address legal vacuums or social change, but this can trigger criticism due to the potential for exceeding judicial authority. In contrast, judicial review emphasizes the self-restraint of judges to adhere to the legal text without creating new standards, providing legal stability but considered less responsive in handling complex issues. In addition, as a standard to balance the two approaches, this paper offers a maslahat theory based on Maqashid Syariah. This method centers on the protection of the five main elements of human life: religion, soul, reason, offspring, and property. These values are in line with the values contained in the Pancasila and the 1945 Constitution. By using a benefit-based analysis, the Constitutional Court is expected to make decisions that are substantially fair, maintain differences in power, and meet the needs of society. This paper emphasizes how important it is for Constitutional Court judges to have clear guidelines and to work together with other state institutions to maximize their role as guardians of the constitution.

Page 4 of 5 | Total Record : 45

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