Jurnal Konstitusi
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Perdebatan dan Fenomena Global Legalisasi Pernikahan Sesama Jenis: Studi Kasus Amerika Serikat, Singapura, dan Indonesia
Get PDFSame sex marriage is currently an international and controversial issue. The issues drive people from around the world, with different culture, religion, and countries into a dividing debate: is same-sex marriage needs to be legalized or banned? The debates brought some countries in different stances, some legalize, some ban and criminalize, and some without clear or specific rules in banning or legalizing it. Due to the differences found between countries, this research aims to provide answer and conclusion to this crucial question: is same-sex marriage is a universal human rights, in which countries should recognize and legalize it? The results of this study show that same-sex marriage is not a phenomenon or a right that can be accepted and recognized in all countries, cultural settings, and religions. Therefore same-sex marriage does not fulfill the requirements to be said as a universal human right which absolutely must be recognized, accepted, and fulfilled by all countries (without exceptional) in the world. Therefore, the policy to legalize or prohibit same-sex marriage is entirely an open legal policy which can be freely chosen by each sovereign state. There is no obligation under international law to legalize or prohibit that matter because it is not a universal human rights and moral standard which can be enforced recognition and fulfillment in every country
Prospek Penjatuhan Putusan Provisi dalam Perkara Pengujian Undang-Undang
Get PDFProvisional petition is not common in judicial review cases. This paper seeks to find the basis for submitting a provisional petition and the pattern of ruling on the provisional petition. The results showed that there were three things that became the basis for the petition for provisions, namely: (i) there were allegations of criminal acts in the formation of the law that was petitioned for review; (ii) protecting the constitutional rights which are seriously threatened and cannot be restored in the final judgment; and (iii) the urgent need for time to obtain a judge’s decision before the election, especially with regard to the right to vote and be elected. There were three pattern of rendering decisions on provisional petition, namely (i) dropped when the case examination process is ongoing and stated in writing before making the final decision; (ii) pronounced orally in court when the case examination process is ongoing and then reaffirmed in writing in the final decision; and (iii) decided simultaneously with the subject matter of the petition in the final judgment
Overruling Mahkamah Konstitusi RI terkait Isu Korupsi
No full textOverruling is a revision of a court’s previous judicial precedent, meaning the court replaces the precedent with a new rule. This article sees that overruling is legitimate to seek constitutional truth. In practice, the Constitutional Court of the Republic of Indonesia (CCRI) has overruled its own Decisions through judicial review. This article focuses on the CCRI’s overruling on corruption issues which are the status of the Indonesian Corruption Eradication Commission and the meaning of the phrase “may harm State’s financial” which is stated in Law No. 31 of 1999. This article argues that those Decisions are consistent with constitutional truth although the ratio decidendi of the Court of the latter issue is inadequate. A case approach and a conceptual approach are used in the analysis of this legal research
Menimbang Kedudukan Majelis Kehormatan Mahkamah Konstitusi Setelah Terbitnya Undang-Undang Nomor 7 Tahun 2020
No full textThis research elaborates the Constitutional Court interpretation within Decision No. 49/PUU-IX/2011 on judicial review of Law No. 8 of 2011 on amendments of Law No. 24 of 2003 on the Constitutional Court which its decision has granted mostly the petitioner’s petitions to change the Honorary Council of the Constitutional Court members composition. There are at least two examined issues in this study, they are: Firstly, does the addition of elements House of Representative, Government and the Supreme Court contradict Article 1 paragraph (3) and Article 24 paragraph (1) and (2) of the 1945 Constitution? And secondly, what is the implication of the decision to repeal Article 27A paragraph (2) letters C, D, and E for check and balance between three branches of state government (executive, legislative and judicial) in Indonesia? This research is normative legal research that uses a conceptual approach, also reviewed with case studies related to material research. The results show; Firstly, based on the study to Indonesian Constitutional Court Decision No. 49/PUU-IX/2011 which accepted most of the petitioner’s petitions on judicial review of Law No. 8 of 2011, the Constitutional Court stated that the addition of elements House of Representative, Government and the Supreme Court as members in the Honorary Council of the Constitutional Court then legislators have endangered the freedom of judicial power as regulated Article 1 paragraph (3) and Article 24 paragraph (1) and (2) the 1945 Constitution. Secondly, this decision has an impact on the members of the Honorary Council of the Constitutional Court which only consists of two elements, namely the constitutional court and the judicial commission. Therefore, the Constitutional Court Decision is considered successful in keeping the principle of check and balance between three branches of state government in the Indonesian constitutional state system
Proses Seleksi Hakim Konstitusi: Problematika dan Model Ke Depan
Get PDFThe disparity in the selection mechanism of the Constitutional Court Judge has led to a trifurcation to the selection of constitutional judges carried out by the President, the House of Representatives, and the Supreme Court. The trifurcation of the Constitutional Court judge selection can not be separated from the construction of norms in the Constitutional Court Law which regulates the constitutional judge selection that have a high degree of flexibility so that they can be interpreted freely and suit the tastes of each regime by the institutions that have the constitutional authority to propose constitutional judge. The problem in this research is show to implementation of the selectionsystem of constitutional judgesin Indonesiais currently and how the model of selection of constitutional judges will be the future. The analysis will be carried out normatively using a statutory, historical and conceptual approach. The results of the study show that the redesign of the constitutional Court Judge selection is an urgent matter to establish the standards of the Constitutional Court judge selection valuation in a transparent, participatory, objective, and accountable manner. The recruitment and selection model for Constitutional Court judges that using a selection panel either by the respective Constitutional Judges Proposing institutions or by the form of an agreement of the respective constitutional judge proposing institutions is a legal reform that have a main goal which is to produce the constitutional court judges who have ideal integrity as a true statesman. The recruitment process using a clear and standard selection panel is a fulfillment of the main principles of the constitutional judge position filling mandated by the Constitutional Court Law
Kebijakan Pembatasan Internet di Indonesia: Perspektif Negara Hukum, Hak Asasi Manusia, dan Kajian Perbandingan
Get PDFThe rapid growth in internet use has led governments in various countries, including Indonesia, to implement “internet restriction policies” to offset the possibility of internet abuse. Such restrictions on the internet have caused polemics, especially regarding the rights to freedom of opinion and the right to communicate and seek or receive information. In this paper, the polemic will be explored further based on 3 (three) perspectives, among others: (1) the rule of law; (2) human rights; and (3) legal comparisons. This paper is written using the juridical-normative legal research method. The results of the analysis of this paper show that: (1) there are still unfulfilled principles of the rule of law in internet restrictions; (2) limitation of human rights in the limitation of “internet networks” by which do not have a legal basis; and (3) the expected characteristics of internet restrictions in the view of several countries, namely: a) there is a clear juridical basis; b) contains clear limitation procedures; c) inspection and supervision; d) there is an independent supervisor; e) there is a mechanism of protection, recovery, and rehabilitation for innocent parties
Constitutional Compliance Atas Putusan Pengujian Undang-Undang di Mahkamah Konstitusi oleh Adressat Putusan
Get PDFTheoretically and conceptually the final decision means that the Constitutional Court’s decision is the first resort as well as the last resort for justice seekers. If it is related in the context of upholding the supremacy of the constitution, it certainly does not only stop at the cancellation of a norm of law that is contrary to the constitution, but rather how the decision on annulment is then obeyed and implemented. That is because the nature of the final MK decision. However, in the recent constitutional issues, compliance by state institutions in implementing the Constitutional Court’s decision becomes a problem because there are indications of non-compliance to follow up on the final and binding Constitutional Court’s decision. Based on this, the formulation of the problem to be answered in this study is how the level of compliance with the implementation of the judicial review decision in the Constitutional Court for the period 2013-2018. The research is a juridical normative research, with the main data source, namely secondary data, data analysis using analysis Qualitative and approach methods use the statute approach and conceptual approach. The results of this study indicate that there are three categories of levels of compliance with the implementation of the 2013-2018 PUU MK ruling, namely: full compliance; partially obeyed and not obeyed. The results of the study of the authors show that the majority of MK PUU decisions were complied with totaling 59 decisions or 54.12%. However, there are also some decisions that are not obeyed in whole or in other words only partially complied with as many as 6 decisions or equal to 5.50%. Whereas the decisions that were not complied with amounted to 24 decisions or 22.01%. The remaining 20 decisions, or 18.34%, have yet to be identified in terms of compliance because of two things, namely: 1) the constitutionality period given by the Constitutional Court in its decision has not been exceeded, meaning that the legislators still have time / opportunity to follow up; 2) there has been no follow-up at all from the adressat of the decision both normatively and praxis. Thus it can be concluded that the level of compliance with PUU MK decisions for the period 2013 - 2018 is still higher than the level of non-compliance with a ratio of 54.12% compared to 22.01%
Justifikasi Pemutusan Hubungan Kerja Karena Efisiensi Masa Pandemi Covid-19 Dan Relevansinya Dengan Putusan Mahkamah Konstitusi Nomor 19/PUU-IX/2011
Get PDFThis conceptual article aims to analyze about the justification and legal aspect of employment termination because of efficiency phenomenon in covid-19 pandemic period. Article 164 paragraph 4 Manpower Act and Constitutional Court Decision Number 19/PUU-IX/2011 already stipulated that employment termination because of efficiency must be followed by company closure. But, covid-19 pandemic situation was forcing the employers to do employment termination because of efficiency without a company closure. The conclusion of this article is the employers did the termination without the company closure based on consideration that, it would prevent more damage than did it with the closure. The company closure would bring result all of workers, including the employers, loss their jobs. The employment termination because of efficiency, but without company closure could be preserved the operational of company and maintain the other workers’ jobs. This efficiency reason is not actually prohibited in Article 153 paragraph 1 Manpower Act and in ILO’s Convention and Recommendation 1982. However, this termination could not use Article 164 paragraph 4 Manpower Act and Constitutional Court Decision Number 19/PUU-IX/2011 as the legal basis. The compensation formulation model of the termination could use the formulation of termination without worker’s fault as stipulated by Manpower Act. In addition, the institutions of industrial relaton dispute resolution must supervise the termination process, in order the process would be staged fairly, coincide with the principles of legal termination, and the workers’s compensastion would be fulfilled by the employers
Perlindungan Hak Konstitusional Masyarakat Pesisir : Urgensi Harmonisasi Regulasi Pengelolaan Pesisir Terpadu
Get PDFTen years ago, the Constitutional Court Decision Number 3/PUU-VIII/2010 confirmed that the granting of concession rights for coastal waters (after this: HP3) by the government to private parties was contrary against the constitution, especially Article 33 paragraph (4) of the 1945 Constitution. Legislators then respond to the decision to revise Law No. 27 of 2007 as Law No. 1 of 2014 on the Amendment of Law No. 27 of 2007 on the Management of Coastal Areas and Small Islands. The revision has changed the HP3 regime from Law 27/2007 to the licensing regime in Law 1/2014. Unfortunately, these changes would lead to various juridical problems ranging from conflict between the laws and regulations under legislation that ultimately is potentially detrimental to the constitutional rights of coastal communities. This research focuses on juridical and sociological aspects related to the coastal communities protection of constitutional rights after the Constitutional Court Decision Number 3/PUU-VIII/2010. This research in-depth discusses the follow-up of the Constitutional Court decision a quo by legislators, central government, local governments, stakeholders, and the fulfilment of the constitutional rights of coastal communities. This research is normative legal research by examining the Constitutional Court decision Number 3/PUU-VIII/2010. The descriptive discussion used to understand coastal zone management law\u27s politics to fulfil the constitutional rights of coastal communities. Besides, integrated coastal zone management (Integrated Coastal Zone Management) is a dynamic process, multidisciplinary, and repeated to promote sustainable coastal areas\u27 sustainable management. It includes the whole cycle of information collection, planning, decision-making, management, and implementation monitoring
Prinsip Proporsionalitas dalam Putusan Mahkamah Konstitusi (Studi Perbandingan di Indonesia dan Jerman)
Get PDFThe judicial review of UUD 1945 is the authority of the Constitutional Court declared by Article 24C UUD NRI 1945. One of the reasons for judicial review is competiting rights or the constitutional rights of citizens who have been violated through existing laws, so there needs to be an examination of the law these laws. It is also known that some of the judges’ decisions in competiting rights cases only use the interpretation of the constitution without considering the impairment of rights delivered by the applicant in the examination. Thus resulting in a decision stating that the law does not conflict with the constitution. This hurts citizens who feel their rights have been violated. A balance is needed between the public interest and the constitutional rights of citizens. The counterweight can use the principle of proportionality. The principle of proportionality is needed by the constitutional judge in his consideration when faced with a case of competiting rights. But unfortunately, this principle is not always used when faced with competiting rights, and the principle was not developed by Constitutional Court judges. In this paper the problem to be answered is first the history of the principle of proportionality, secondly the comparison of the use of the principle of proportionality in constitutional justice in Germany and Indonesia. The problem was answered using normative legal research methods. The main material is the decision of the Constitutional Court and supporting materials in the form of books and journals. The conclusion in this paper is the need to use the principle of proportionality in dealing with competiting rights cases in the Constitutional Court. So it is necessary to immediately develop the principle of proportionality and its parameters