Prosiding Seminar Hukum Aktual Fakultas Hukum Universitas Islam Indonesia
Prosiding Seminar Hukum Aktual Fakultas Hukum Universitas Islam Indonesia merupakan media publikasi karya ilmiah hasil seminar nasional yang mengkaji berbagai permasalahan terkini dalam bidang hukum pidana, hukum perdata, hukum internasional, hukum tata negara, dan hukum administrasi negara. Prosiding seminar nasional yang ditulis oleh penulis internal Fakultas Hukum UII maupun penulis eksternal tersebut diterbitkan sebanyak 6 (enam) kali dalam setahun yaitu Januari, Maret, Mei, Juli, September, dan November.
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<![CDATA[Netralitas Pegawai ASN dalam Pemilihan Umum (Catatan Kritis Pemilu Presiden 2024) ]]>
<![CDATA[Bibianus Hengky Widhi Antoro]]>
<![CDATA[ Prosiding Seminar Hukum Aktual Fakultas Hukum Universitas Islam Indonesia Vol. 2 No. 5 SEPTEMBER 2024 ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Islam Indonesia ]]>
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<![CDATA[The General Election Commission (KPU) has inaugurated the elected Presidential and Vice Presidential Candidates in the 2024 General Election. All stages of the Presidential and Vice Presidential Elections have been passed, and we are just waiting to take the oath. Even though all stages have been carried out, various problems still need to be solved, one of which is related to the neutrality of civil servants. Data from the Commissioner of the Indonesian Civil Servant Commission and the Constitutional Court's decision shows that violations of Civil Servant neutrality are very high and massive, especially after enacting the latest Civil Servants Law. This article uses normative legal method with the statute, case, and conceptual approaches related to the issue of the Civil Servants neutrality in the 2024 presidential election is reviewed from of. The conclusion shows that many civil servants still violated neutrality, follow-up on recommendations still needed to be implemented, and future efforts were made to form an independent commission that was a single organ that was multi-tasked with dual functions, namely supervisory and quasi-judicial functions.]]>
<![CDATA[Evaluasi Sistem Pemilu dan Ambang Batas Parlemen di Indonesia ]]>
<![CDATA[M Zidny Ilman Nafian]]>
<![CDATA[ Prosiding Seminar Hukum Aktual Fakultas Hukum Universitas Islam Indonesia Vol. 2 No. 5 SEPTEMBER 2024 ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Islam Indonesia ]]>
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<![CDATA[The proportional electoral system has given rise to differences in the perspective of popular sovereignty. With careful consideration regarding the establishment of a proportional electoral system, it is hoped that elections can be created based on people's sovereignty. It is considered that the determination of parliamentary thresholds still needs to be reviewed. Determining the electoral system and parliamentary thresholds is a fundamental problem in organizing elections in Indonesia. This research uses normative research methods with a normative juridical approach, which is based on statutory regulations, opinions of legal experts, and factual case studies. Data collection techniques were carried out through literature studies from books, journals, articles and statutory regulations. The data analysis technique used in this research is a qualitative data analysis technique which refers to the facts and data that have been collected. Based on the results of the research, the author found several shortcomings in determining the 4% parliamentary threshold which requires further study in determining it. The author believes that a closed proportional system with the proposed adjustments can be the right solution to advance democracy in Indonesia, while maintaining political stability and fair representation for all Indonesian people.]]>
<![CDATA[Institusionalisasi Partai Politik: Studi Terhadap Masa Jabatan Pimpinan Parpol di Indonesia 2019-2023 ]]>
<![CDATA[Muhammad Haqiqi]]>;
<![CDATA[Rizki Maulana Syafei]]>;
<![CDATA[Audina El Rahma]]>
<![CDATA[ Prosiding Seminar Hukum Aktual Fakultas Hukum Universitas Islam Indonesia Vol. 2 No. 5 SEPTEMBER 2024 ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Islam Indonesia ]]>
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<![CDATA[The term of office of political party leaders is still being debated both in Article 23 paragraph (1) of Law Number 2/2011 concerning Political Parties, as well as in the test at the Constitutional Court with Decision Number 69 / PUU-XXI / 2023. The location of the debate is because the Political Party Law orders the regulation to the internal regulations of political parties, which is felt to be undemocratized in the level of regeneration of political party leaders. This research is present to compare the tenure of political party leaders in parliament and then determine the most ideal tenure of political party leaders from these parties based on the concept of institutionalization of political parties. This research method is juridical - normative through conceptual approach and statutory approach to legal materials related to the theme. This research concludes, from the internal regulations of the parties, the requirements for party leaders to the mechanism for electing political party leaders in general have the same style. Specifically related to the term of office of political parties, only the United Development Party (PPP) and the Prosperous Justice Party (PKS) have a period of time regulated in the party's internal regulations. Based on the concept of institutionalization of political parties from the comparative study, the ones that are close to the ideal concept are the Prosperous Justice Party (PKS) and the United Development Party (PPP).]]>
<![CDATA[Keterwakilan Perempuan Pada Lembaga Penyelenggara Pemilu Sebagai Hak Asasi Manusia ]]>
<![CDATA[Agus Nardi Nasution]]>;
<![CDATA[Sheila Hamdah Hanum Ritonga]]>
<![CDATA[ Prosiding Seminar Hukum Aktual Fakultas Hukum Universitas Islam Indonesia Vol. 2 No. 5 SEPTEMBER 2024 ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Islam Indonesia ]]>
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<![CDATA[Human rights are the birth rights of humans given by God. According to Artidjo Alkotsar in his book Human Rights are natural rights which are a gift from Allah SWT. Human rights are not a gift from any authority, government body, law or party for anything. Based on the background above, the problem is formulated as follows: (1) What are the Human Rights Problems experienced by Women's Representation as Election Organizers?, (2) What is the legal protection for Women's Representation as Election Organizers in Indonesia? This research uses normative research, namely reviewing and analyzing statutory regulations relating to law, legal principles, legal standards. The results of this research show that women's representation in organizing general elections has not reached 30% as stated in the regulations of Law no. 7 of 2017 concerning Elections, so it is necessary for the government and election organizing institutions to provide education and training access to women, and protection for female organizers.]]>
<![CDATA[Peluang Penerapan Purcell Principle sebagai Judicial Restraint Bagi Mahkamah Konstitusi dalam Pengujian Undang-Undang pada Tahapan Pemilihan Umum ]]>
<![CDATA[Dian Agung Wicaksono]]>
<![CDATA[ Prosiding Seminar Hukum Aktual Fakultas Hukum Universitas Islam Indonesia Vol. 2 No. 5 SEPTEMBER 2024 ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Islam Indonesia ]]>
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<![CDATA[There are differing opinions regarding the Constitutional Court's decision to review laws related to elections after the election stages have begun, which indicates a lack of implementation of the Purcell principle. This principle states that the court cannot make decisions that affect changes to election rules once the election stage has begun, as it would make it difficult for organizers to adjust the rules and create confusion for the public. The aim of this research is to answer two questions: (1) how can the concepts of the Purcell principle and judicial restraint be explained in relation to the judiciary? and (2) what are the chances of applying the Purcell principle as a form of judicial restraint by the Constitutional Court when reviewing laws during the election stage? This is normative legal research that analyzes secondary data, including relevant laws and regulations, and various related literature. The findings show that the Purcell principle and judicial restraint have developed as concepts in the practice of the United States judiciary. Judges who apply the Purcell principle also apply the concept of judicial restraint because the court limits itself from making decisions that impact election rules during the election stage, thereby demonstrating the judge's attitude in applying judicial restraint. Moreover, there are several opportunities for the Constitutional Court to apply the Purcell principle as a form of judicial restraint when reviewing laws during the election stage.]]>
<![CDATA[Legal Policy Pembatasan Hak Politik Anggota Kepolisian dan Prajurit TNI di Indonesia: Sebuah Evaluasi ]]>
<![CDATA[Rahadian Diffaul Barraq Suwartono]]>
<![CDATA[ Prosiding Seminar Hukum Aktual Fakultas Hukum Universitas Islam Indonesia Vol. 2 No. 5 SEPTEMBER 2024 ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Islam Indonesia ]]>
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<![CDATA[Political rights’ limitation for members of the police and TNI soldiers is an old issue that has almost been forgotten. However, this issue is back to become relevant when the 2024 General Elections are held. The spirit of regulating legal policies to limit political rights can be traced back to the embryonic formation of the TNI as a national armed force before Indonesia's independence. The Indonesian military, which was born with a unique character as a people's army, is positioned as a stabilizer of the political life of the nation and state through the conception of the Middle Way and the Dual Functions of ABRI. However, at the end of the New Order, this policy gave rise to excesses that harmed human rights and democracy in Indonesia. This article describes this problem in the form of a research formulation: what is the background to limiting the political rights of members of the National Police and TNI soldiers? And; Do these restrictions on political rights still need to be maintained? This is because efforts are starting to emerge to eliminate restrictions on political rights for TNI soldiers and members of the National Police. This article describes the grand design of the legal policy on these restrictions. This restriction is still relevant today and needs to be strengthened again after the 2024 elections. A thorough evaluation is required to ensure this legal policy can survive.]]>
<![CDATA[Politisasi Birokrasi - Bantuan Sosial dan Gugatan Perbuatan Melawan Hukum sebagai Sengketa Pemilu ]]>
<![CDATA[Richo Andi Wibowo]]>
<![CDATA[ Prosiding Seminar Hukum Aktual Fakultas Hukum Universitas Islam Indonesia Vol. 2 No. 5 SEPTEMBER 2024 ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Islam Indonesia ]]>
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<![CDATA[This paper discusses cases of tort committed by government agencies/officials intertwined with election issues. This article raises three questions: by examining court decisions on the so-called Acting Regional Head case, has the tort lawsuit been effective in preventing the politicization of the bureaucracy? Why the previous case had occurred, but no tort lawsuit happened on the politicization of government social assistance?; What needs to be done to make the tort lawsuits more effective in preventing the politicization of bureaucracy and budgets in the future elections? This research examines court decisions and social phenomena with a legal theory as a tool of analysis. This paper concludes that the quality of ratio decidendi and dictum of the Acting Regional Head case were poor; the lawsuit has not been effective in preventing bureaucratic politicization. Moreover, there are several reasons on why nobody has sued tort on the context of politicization of government social assistance: limited time to submit petition; long and bureaucratic tort dispute process; court's narrow interpretation on "legal standing" and "plaintiff's losses"; also unpleasant experience with the results of the previous case. Four suggestions are provided to enhance the effectiveness of the tort conducted by the government.]]>
<![CDATA[Implikasi Dissenting Opinion Hakim Mahkamah Konstitusi dalam Perkara Perselisihan Hasil Pemilihan Umum (PHPU) Presiden dan Wakil Presiden Tahun 2024 ]]>
<![CDATA[M. Giovani Fernanda]]>;
<![CDATA[Lego Karjoko]]>;
<![CDATA[Hari Purwadi]]>
<![CDATA[ Prosiding Seminar Hukum Aktual Fakultas Hukum Universitas Islam Indonesia Vol. 2 No. 5 SEPTEMBER 2024 ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Islam Indonesia ]]>
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<![CDATA[The 2024 Presidential and Vice Presidential PHPU case contained a dissenting opinion, which had never happened before. This research aims to analyze the dissenting opinions of Constitutional Court Judges in the PHPU dispute for the President and Vice President and the implications of the dissenting opinion for the upcoming election. The research method is normative juridical. The type of data used is secondary data. The data analysis technique uses a data interpretation method with deductive reasoning which is presented descriptively. The results of this research are: first, the Dissenting opinion of the Constitutional Court Judge in the 2024 Presidential and Vice Presidential PHPU case, namely: Constitutional Justice Saldi Isra assessed that the distribution of social assistance during elections has the potential to cause a conflict of interest, so that the Petitioner's petition relating to social assistance is legally grounded; Constitutional Justice Arief Hidayat, based on systematic and grammatical interpretation, is of the opinion that the President/Vice President's right to campaign is used when the President/Vice President pair becomes the President/Vice President candidate pair in an election contest; Constitutional Justice Enny Nurbaningsih believes that there has been non-neutrality of officials in several regions, so the Court should order re-voting for several of these regions. Second, the implications of dissenting opinions on the upcoming election can be used as a basis for the implementation of future elections, so that there are improvements both in terms of regulations, institutions and implementation that must be carried out by legislators and election organizers in order to increase the integrity and credibility of elections.]]>
<![CDATA[Meninjau Urgensi Penerapan Purcell Principle pada Pemilihan Umum (Pemilu) di Indonesia ]]>
<![CDATA[Ibrahim Ghifar Hamadi]]>
<![CDATA[ Prosiding Seminar Hukum Aktual Fakultas Hukum Universitas Islam Indonesia Vol. 2 No. 5 SEPTEMBER 2024 ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Islam Indonesia ]]>
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<![CDATA[The absence of limitations on the Constitutional Court to adjudicate court decisions regarding electoral regulations ahead of electoral contests has become a serious issue in Indonesia. Without clear limitations, court decisions have the potential to disrupt the electoral administration process and create uncertainty that could harm the electoral order. Reflecting on Constitutional Court Decision Number 90/PUU-XXI/2023, which regulates the age requirements for presidential and vice-presidential candidates before elections, serves as a stern reminder that the courts should not grant judicial review related to elections as it may give rise to conflicts of interest and tend to favor one party. To address this issue, the application of the Purcell Principle in Indonesia is necessary. The research method used is normative legal research using a legal approach and utilizing secondary data in the form of literature materials, such as legislation, court decisions, books, scholarly articles, and internet sources regarding the Purcell Principle. This study concludes that the application of the Purcell Principle is needed in Indonesia. Considering the concept of the Purcell Principle already applied in the United States, Indonesia must adopt the Purcell Principle to ensure order and legal certainty in the conduct of elections in the country.]]>
<![CDATA[Antara Pemilu dan Etika: Batasan Kewenangan Presiden dalam Kontestasi Pemilihan Presiden di Indonesia ]]>
<![CDATA[Syaiful Bahri]]>;
<![CDATA[Heri Fathumulloh]]>
<![CDATA[ Prosiding Seminar Hukum Aktual Fakultas Hukum Universitas Islam Indonesia Vol. 2 No. 5 SEPTEMBER 2024 ]]>
Publisher : <![CDATA[Fakultas Hukum Universitas Islam Indonesia ]]>
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<![CDATA[Sometimes what is permissible legally may not necessarily be ethical. This is the focal point of scrutiny regarding the actions of the President in involvement in the presidential elections in Indonesia. Where a President essentially holds strong political power relations and can mobilize state machinery, thus when a President supports one of the candidate pairs in the presidential election contest, it raises a question of whether it is ethical within the framework of democratic ethics, even though there is no prohibition for a President to support a candidate pair in Law No. 17 of 2017 concerning Elections. This study uses a normative legal research method with a literature study approach. The methods used are legislative approach and conceptual approach. The results of this study explain that normatively the President has the right to campaign/support a candidate pair, but must comply with provisions, such as taking leave outside state responsibilities and not using state facilities and upholding the principles of democracy, justice, separation of powers, protection of human rights, freedom of the press, and legal compliance. However, ethically, even though permissible in legislation, the President inherently holds power as the Head of State and Head of Government. Therefore, a Head of State must be neutral and embrace all, so it is not ethical if the President supports one of the presidential candidate pairs.]]>
