Jurnal Konstitusi
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Menimbang Model Pengujian Keputusan Pejabat Publik oleh Mahkamah Konstitusi Republik Indonesia (Studi Perbandingan Indonesia dan Korea Selatan)
Get PDFTesting public officials decision in Indonesia, which has been the authority of the State Administrative Court (PTUN) should be done through a constitutional complaint mechanism, written under the authority of the Constitutional Court of the Republic of Indonesia (MKRI). This is due to all public officials have the potential to perform acts that violate or harm the constitutional rights of citizens as guaranteed in the 1945 Constitution (UUD 1945). This additional authority to examine and decide cases of constitutional complaints should be possible in the framework of carrying out the functions of the Constitutional Court as the guardian of the constitution as implemented in countries that apply the principle of constitutional supremacy, one of which is as applied in the Constitutional Court of The South Korea. Even though South Korea has an administrative court which also has the authority to examine the decision of public officials, South Korea still open space for its citizens to file constitutional complaint in Constitutional Court of South Korea when there is a public official decision that harm and violating the constitutional rights of the citizens that have been guaranteed in constitution. Thus, when all legal remedy for violations of constitutional rights as a result of the issuance of public official decision has been exhausted, but violations still occur, then this constitutional complaint mechanism into the need to provides maximum protection and respect the constitutional rights of citizens. Therefore, the additional authority to examine and decide constitutional complaint can not be separated from the authority of the Constitutional Court
Perlindungan Hak-Hak Konstitusional Masyarakat Adat di Kabupaten Boalemo dalam Penerapan Sanksi Adat
Get PDFProblems with indigenous people in Boalemo district, Gorontalo Province often occur, especially the issues about the imposement of costumary sanctions. Imposing costumary sanctions without clear relugations will absolutely cause legal consequences in the future. Eventhough constitutional rights for indigenous people is already granted by the government as stated In article 18B paragraph (2), and Article 28 I paragraph (3) of The 1945 Constitution Of Republic Indonesia. This regulation is a mandate from the state and given to the regions. This regulation is oftenly referred when discussing the existence and rights of indigenous peoples and become a crutial issues when it comes to the implementation of the protection of the constitutional rights for indigenous peoples in Boalemo district Gorontalo Province. Therefore, This research aims to analyze the Legal standing for indigenous people and constitutional rights for costumary sanctions in Boalemo district Gorontalo Province. This normative research utilized secondary data as resourch and used statute approach and case approach. The results of the study discover that the costumary law and the imposement of costumary sanctions are still mantained and implemented in Indonesia. Government should more concern about constitutional rights compliance for indigenous people. However, the imposement of customary sanctions are not regulated in a regional regulation. So the constitutional rights which should become the spirit for regional autonomy to provide justice in a judiciary are only resolved by way of deliberation, This can not give the satisfaction for some parties
Konsep Regulasi Berbasis Risiko: Telaah Kritis dalam Penerapannya pada Undang-Undang Cipta Kerja
Get PDFThe Law on Job Creation emphasizes the ease of doing business. One of the things that is of concern is the simplification of business permit. The concept of risk-based regulation is attractive to simplify the programs due to the assumption that it may cut off a number of licenses. However, the application of risk analysis to screen permits is something different from other countries. In addition, the application of risk-based regulations also needs to pay attention to the critique that is not accommodated in the Law. This paper describes 4 (four) critiques of the application of risk-based regulation in the Law, (i) the omnibus format confuses risk assessment, (ii) volatility risk has not been considered, (iii) systemic risk has not been considered and (iv) potential “regulatory capture”. Conceptually, the application of risk-based regulation has sparked an academic discourse regarding the broad understanding of regulation that has evolved far from the narrow meaning in academic discourse in Indonesia which defines it only as a statutory regulation
Tinjauan Pengaturan Hukum Konservasi Sumber Daya Alam Hayati dalam Berbagai Putusan Mahkamah Konstitusi
No full textLaw No. 5 Year 1990 on Conservation of Biological Resources and Ecosystem must be relevant and in harmony with regulation and Constitutional Court decisions. The issues of this article are : (1) How is the harmony between Law No. 5 Year 1990 on Conservation of Biological Resources and Ecosystem with other regulations ?; 2) how is the accordance between Law No. 5 Year 1990 on Conservation of Biological Resources and Ecosystem with Constitutional Court decisions? This is a normative research with conceptual and regulations approach. This article use secondary data with interactive model analysis. This research shows that : (1) Law No. 5 Year 1990 on Conservation of Biological Resources and Ecosystem has not considered Basic Agrarian Law and People’s Consultative Assembly No. IX/MPR/2001 as base of natural resources regulation. This regulation is neither according to other regulations nor responsive because this has not regulated modern biotechnology and genetic resources. (2) Law No. 5 Year 1990 on Conservation of Biological Resources and Ecosystem is not according to Constitutional Court Decision that emphasize on preventive aspect of natural resources management, protection and respect of indigenous people and substantive public participation. In another side, this regulation emphasize on curative aspect, irrespect and not protect indigenous people. This article recommends revision of this regulation and accord it with Constitutional Court Decision
Judicial Consistency dalam Putusan Mahkamah Konstitusi tentang Pengujian Undang-Undang Penodaan Agama
Get PDFThis paper will discuss the consistency of the constitutional court decision in the judicial review cases based on the principle of precedent. MK several times deemed inconsistent because often issued a ruling that is overruling. However, there were actually a lot of MK decisions that consistently followed the precedent. Although the use of the precedent principle is only known in common law tradition, the Constitutional Court apparently also applies it. The Constitutional Court’s decision regarding the Blasphemy Prevention Act was one form of the principle of precedent in the Constitutional Court. This decision consistently states that the Blasphemy Prevention Act remains constitutional because a legal vacuum will occur if the Blasphemy Prevention Law was decided to be unconstitutional. In this case, the Court retained its ratio decidendi to the constitutionality of the Blasphemy Prevention Law, even though the Court was aware that the Law contained many weaknesses. The consistency of the Constitutional Court on the judicial review of the Blasphemy Prevention Act is one form of the practice of precedent doctrine
Anomali Penerapan Klausul Bersyarat dalam Putusan Pengujian Undang-Undang terhadap Undang-Undang Dasar
Get PDFIn the implementation of constitutional review by the Constitutional Court, one of the dynamics occur is the emergence of conditionally constitutional unconstitutional decisions. Furthermore, the utilization of these types of decisions also has its dynamics, especially concerning the interpretation of conditional decisions. It can be indicated by the existence of anomalies decisions, which in the legal consideration, states that the norms reviewed are conditionally constitutional, but in its verdict, the norms are declared conditionally unconstitutional. Therefore, this paper aimed to comprehend the utilization of conditional decisions in constitutional review and to understand how is the anomaly in conditional clause implementation, as well as what Constitutional Court can do to prevent the anomalies to occur. Based on the analysis of conditional decision’s anomalies, there are at least three points that need to be pointed out. First, the anomalies increasingly show that conditionally constitutional and conditionally unconstitutional are substantially the same. Second, the use of conditionally constitutional clause as a ratio decidendi is considered to have no impact on the implementation of decisions. Third, the seven decisions analyzed further emphasized the Constitutional Court views that conditionally constitutional clause is deemed to be more effective in the implementation
Perlindungan Hak Konstitusional Ekonomi Warga Negara Melalui Hak Paten di Indonesia
Get PDFCases of piracy against patents or trademarks are cases that often occur in Indonesia. Responding to these challenges, this study aims to find out how the legal protection of citizens economic constitutional laws through patents in Indonesia. This research is prescriptive legal research and was carried out using systematic literature review methods. The research data is sourced from rules and regulations in force in Indonesia, books, and articles from national and international journals that discuss patent rights. The researcher then analyzed the data collected in a descriptive qualitative manner. The results of this study indicate that the Indonesian government protects the constitutional rights of its citizens through patents by registering their work or products by the provisions in force in Indonesia. However, when the work or product is not registered, the product is not protected by law. For this reason, citizens who have works and products that are economically valuable that allow them to be reproduced are advised to register their products or works through patents
Hukum yang Hidup dalam Masyarakat dalam Pembaharuan Hukum Pidana Nasional
Get PDFThe question about the existence of the living law in the criminal law reform can at least be done both in juridical and theoretical perspectives. This paper attempts to discuss and present two important perspectives on the living law in the criminal law reform. First, how the position of the living law in the criminal law reform is seen from the perspective of legal theory. Secondly, how far of the living law is gaining justification for contributing to the criminal law reform. Both problems are studied in doctrinal and produce findings as follows: first, the contribution of the living law in the criminal law reform is gaining theoretical strengthening. Secondly, the contributions of the living law in the criminal law reform also obtained not only by national legal instruments, but also by international legal instruments
Penyelesaian Sengketa Batas Wilayah Melalui Pengujian Undang-Undang di Mahkamah Konstitusi
Get PDFThis research discusses the interpretation of the Constitutional Court in reviewing laws regarding the formation of regions whose decisions grant the petitioner’s petition which have implications for changes in territorial boundaries, namely the Constitutional Court Decision No. 127 / PUU-VII / 2009. There are two problems examined in this research, namely (1) How is the interpretation of the Constitutional Court in resolving territorial boundary disputes through testing the laws in review of the 1945 Constitution; (2) How the design of territorial boundary dispute resolution constitutionally. The research method used is normative juridical research using a conceptual approach. In addition, it is reviewed with case studies related to the material being studied. The results of this study are (1) Based on the review of the Constitutional Court decision no. 127 / PUU-VII / 2009 which granted the request for judicial review of Law No. 56 of 2008 concerning the Establishment of Tambrauw Regency, the Constitutional Court stated that the legislators had ignored the aspirations of the people of Tambrauw Regency who had divided its territory from 10 (ten) districts into 5 (five) districts. This decision implied that 5 districts were re-entered into Law no. 56 of 2008 added 1 (one) district namely Fef District so that Tambrauw Regency has 11 (eleven) districts. Second, the design for the settlement of territorial boundaries is regulated in Permendagri Number 141 of 2017 and Law Number 23 of 2014, namely through Administrative (nonlegal) settlement by the Governor and the Minister of Home Affairs. In addition, legal dispute resolution is carried out through the Minister of Home Affairs’ judicial review rights at the Supreme Court and the Constitutional Court through judicial review of regional formation laws
Konstitusionalitas Perkawinan Antar-Pegawai Pasca Putusan Mahkamah Konstitusi
Get PDFKebijakan perusahaan atau instansi yang melarang seorang pegawai menikah dengan rekan kerja sering dianggap wajar untuk mencegah konflik kepentingan dan penurunan kinerja pegawai. Akibatnya pasangan pegawai itu berada pada pilihan yang sulit yakni terpaksa berhenti bekerja ataukah merahasiakan status perkawinan mereka. Mahkamah Konstitusi menilai bahwa ketentuan di dalam UU Nomor 13 Tahun 2003 tentang Ketenagakerjaan yang membuka ruang bagi perusahaan/instansi untuk menerbitkan larangan demikian adalah inkonstitusional. Hal ini bertentangan dengan hak untuk bekerja yang diatur dalam UUD 1945. Penelitian ini menggunakan metode penelitian hukum doktrinal, menunjukkan bahwa Putusan Mahkamah Konstitusi Nomor 13/PUU-XV/2017 mengenai konstitusionalitas perkawinan antar-pegawai dalam perusahaan yang sama belum sepenuhnya dipatuhi. Beberapa kantor yang masih menerapkan larangan ikatan perkawinan antar-pegawai hendaknya segera mencarikan solusi yang dapat diterima oleh semua pihak dalam rangka melindungi hak konstitusional pegawai sekaligus kepentingan perusahaan