Jurnal Konstitusi
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Discourse on Prohibition of Marriage With the Colleagues for Public Servants: Diskursus Larangan Nikah dengan Rekan Sekantor bagi Aparatur Sipil Negara
No full textAfter the Constitutional Court Decision Number 13/PUU-XV/2017, the labor regime which provided possibility of prohibiting workers for having marital bond with the colleagues, has been distorted to become a permissibility, after annulling Article 153. (1). f the Labor Law. In the scope of State Civil Apparatus, there are several reasonable arguments that the Decision can be extended to them, which is: (a) there is similarity between State Civil Apparatus and labors in the matter of employment relationship. where State Civil Apparatus is an employee which employed by the government, while the labor by the company; and (b) the State Civil Apparatus law doesn’t prohibit them from having a marital bond with the colleagues. Based on that, the restriction on the right to establish a family and to get fair and proper treatment by forcing the prohibition of the marital bond with the colleagues through the internal office regulations shall not be justified
Follow-up of Law-Making State Institutions to the Legal Message of the Constitutional Court Decision: Tindak Lanjut Lembaga Negara Pembentuk UndangUndang terhadap Pesan Hukum Putusan Mahkamah Konstitusi
Full text linkObserving the follow-up of state law-forming institutions (House of Representative and President) after the Constitutional Court Decision is a wise step for the development of legal knowledge. This study uses a normative juridical approach. The results of the study: (i) legal order (injunction) in the ruling section, while legal order (advice) contained in legal considerations and, (ii) follow-up to legal order (injunction) contained in the Constitutional Court\u27s rulings that have been implemented. and some have not been implemented because it has not reached the specified time limit. Meanwhile, the legal order (advice) of the related Constitutional Court decision has been implemented. In the end, it can be concluded that in a decision of the Constitutional Court there are two categories of legal order, namely injunction and advice, which have been implemented by the legislators. Although some have not been implemented because it has not reached the specified time limit
Redesign of Administrative Violation Handling at Bawaslu Post Determination of Election Results: Redesain Penanganan Pelanggaran Administratif di Bawaslu Pasca Penetapan Hasil Pemilu
No full textThe ideal election is an election whose process is good, qualified, and fair. Since the direct elections in 2014 until the simultaneous elections in 2019, election violations have often occurred, including election administration, election crimes, and the code of ethics of election organizers. The design of handling election administrative violations after the determination of the results: handling of the election administrative violations after the determination of election results, the original intense of Article 454 paragraph (6) and Article 461 paragraph (1) of the Election Law, and the ideal redesign in handling administrative violations in Bawaslu after the determination of election results. Research results: first, Bawaslu still receives election administrative reports after the determination of results. Second, the original intense of the norms limit the handling of election administrative violations to the process stage. Third, redesign the norms and the mechanism, then provide strict limits in the Constitutional Court Regulation
Activating Unconstitutional Norms in Law: An Analysis of the Principle of Checks and Balances: Menghidupkan Norma Inkonstitusional dalam Undang-Undang: Suatu Analisis Prinsip Checks and Balances
Full text linkThe existence of norms in the law that have been declared unconstitutional by the Constitutional Court, but re-included in the process of forming laws, can cause harm to the rights of citizens that have been guaranteed by the 1945 Constitution, especially if they are placed in the concept of checks and balances. This study has two objectives, namely, first, to analyze the concept of checks and balances and examples of norms that were canceled by the Constitutional Court but revived. Second, the implications of bringing unconstitutional norms to life. This research was conducted using normative juridical research. The results showed that the principle of checks and balances requires that legislative, executive, and judicial powers control each other. Some unconstitutional norms, but re-enacted, are spread through some statutes. The consequences if an unconstitutional article is reinserted into the law, it will threaten the system of checks and balances that have been agreed upon and affirmed in the 1945 NRI Constitution. In order to apply the principle of checks and balances, reviving an unconstitutional clause that has been overturned by the Constitutional Court must be rejected
Interpretation of Interfaith and/or Belief Marriage by Judges: Disparity and Legal Vacuum: Penafsiran Perkawinan Beda Agama dan/atau Kepercayaan Oleh Hakim: Disparitas dan Kekosongan Hukum
Full text linkJudges experience disparities in interpreting marriages of different beliefs and/or religions, resulting in different legal products, both determinations made. There is a difference between granting and rejecting. Interestingly, the understanding of the Constitutional Court judges and judges at District Courts has a significant disparity where one says there is a legal vacuum and the other is clear in accordance with the law. This study concerning a disparity in interfaith marriages in its determination and the legal vacuum of different-faith marriages created by judges in court. This study concludes that in practice judges in court in giving considerations believe there is a legal vacuum against marriages of different beliefs, as a result judges determine whether there is a disparity determination that is granted or not. The Constitutional Court itself interprets its decisions (2014 and 2022) that interfaith marriages are clear and do not constitute a legal vacuum in its enforcement
Consumer Empowerment: Safeguarding Consumer Rights Through BPSK’s Arbitration Post the Constitutional Court Decision: Pemberdayaan Konsumen: Melindungi Hak Konsumen Melalui Proses Arbitrase di BPSK Pasca Putusan Mahkamah Konstitusi
Full text linkThe arbitration decision by BPSK, can be filed with objections in accordance with Law 8/1999 and annulment under Law 30/1999. These two actions raise questions related to the arbitration process to resolve consumer disputes, consumer protection, and the impact of the Constitutional Court’s decision on the annulment of arbitration awards. This is because both actions are contrary to the final and binding nature of the arbitration award. Through the doctrinal research method, it was found that three years since the Constitutional Court’s Decision, there has been an increase in decisions related to the annulment of arbitration awards and objections to BPSK decisions. The Constitutional Court Decision has two contrary impacts. It makes easier for the aggrieved party in the process of resolving consumer disputes through arbitration to file for annulment or objection. Meanwhile, it also makes the process of consumer protection through arbitration lose its final and binding force.Putusan BPSK juga berlaku sebagai putusan arbitrase, yang tunduk terhadap UU Nomor 30/1999, termasuk sifat final and bindingnya. Sebagai suatu putusan arbitrase, putusan BPSK terdampak Putusan Mahkamah Konstitusi Nomor 15/PUU-XII/2014 tentang Pembatalan Putusan Arbitase. Di sisi lain, sesuai dengan pengaturan di dalam UU Nomor 8/1999, terhadap putusan BPSK dapat diajukan suatu keberatan ke Pengadilan Negeri. Adanya 2 (dua) tindakan yang dapat dilakukan terhadap putusan arbitrase yang dikeluarkan oleh BPSK menimbulkan pertanyaan terkait proses arbitrase dalam upaya penyelesaian sengketa konsumen dan juga dampak putusan Mahkamah Konkstitusi terhadap proses penyelesaian sengketa konsumen di BPSK, karena keduanya bertentangan dengan sifat final and binding dari putusan arbitrase. Melalui metode penelitian doktrinal didapatkan hasil bahwa 3 (tiga) tahun sejak duicapkannya Putusan Mahkamah Konstitusi Nomor 15/PUU-XII/2014, terdapat peningkatakan putusan terkait pembatalan putusan arbitrase dan juga keberatan atas putusan BPSK. Putusan Mahakamah Konstitusi di satu sisi mempermudah pihak yang dirugikan dalam proses penyelesaian sengketa konsumen melalui arbitrase untuk mengajukan pembatalan ataupun keberatan, namun di sisi lain juga membuat proses perlindungan konsumen dalam proses penyelesaian sengketa melalui arbitrase kehilangan kekuatan final and bindingny
Assessment of Elements of Abuse of Authority (Detournement De Pouvoir) Based on the Decision of the Constitutional Court: Penilaian Unsur Penyalahgunaan Wewenang (Detournement De Pouvoir) Berdasarkan Putusan Mahkamah konstitusi
No full textDetournement de pouvoir was regulated in administrative and criminal law. However, the assessment of it was often confused. Therefore, the Constitutional Court through Decision 25/PUU-XIV/2016 provides a line of demarcation in assessing the element of Detournement de pouvoir that must be handled under administrative and criminal law. This article tries to explain the ratio decidendie of the constitutional court through a series of identifications of Detournement de pouvoir. This article uses a statutory approach and presents two main findings; First, the assessment of detournement de pouvoir must be understood based on tort of two field of law. Second, abuse of authority is included as tort in administrative law as long as it relates dwaling of authority, procedures/conditions and substance of the exercise of authority, while abuse of authority can be included as tort in criminal law as long as it contains of dwal badrog, namely bribery, coercion and deception
Legitimacy of Public Participation in the Establishment of Law in Indonesia: Legitimasi Partisipasi Masyarakat dalam Pembentukan Undang-Undang Di Indonesia
No full textThe most participatory form of the public continues, especially since the making process of the omnibus law at Law about Job Creation. Unfortunately, there is no ideal model of public participation. Even though the constitutional court has provided guidelines regarding meaningful participation. There is guaranteed access to public participation, the unanswered question is the aspect of public legitimacy. The review the weaknesses of the public participation model in the formation of the law process in Law about the Establishment of Legislation and Constitutional Court decision. Participation model only answers the formality side, not the substance in the formation of the law, and becomes a validation tool for the academic side, not the aspirations aspect or the legitimacy of the public itself. The problem will be discussed using the normative method. The problem regarding the method of legal development lies in the provisions of the development of the law itsel
Legal Standing to the Corruption Eradication Commission as a Applicant for the Dissolution of a Political Party at the Constitutional Court: Legal Standing Komisi Pemberantasan Korupsi Sebagai Pemohon Pembubaran Partai Politik di Mahkamah Konstitusi
Full text linkThis study criticizes the weakness of the regulation that solely grants Legal Standing for Petitioners seeking the Dissolution of Political Parties at the Constitutional Court to the Government, comprising the Attorney General and the Minister appointed by the President. Another approach is necessary for the Dissolution of Political Parties, which entails providing Legal Standing to the Corruption Eradication Commission, an Executive Entity that is not directly subordinate to the President. Public Trust in the Corruption Eradication Commission remains considerably high, rendering it suitable for representing the Government as a Petitioner for the Dissolution of a Political Party. Consequently, legislators must revise the Constitutional Court Law, the Corruption Eradication Commission Law, and the Constitutional Court\u27s Regulation regarding Procedures for the Dissolution of Political Parties, thereby granting legal standing to the Corruption Eradication Commission as the Petitioner for Dissolving Political Parties
Dynamics of Granting Legal Standing to the Indigenous Community in Constitutional Review of Law: Dinamika Pemberian Kedudukan Hukum Pemohon bagi Masyarakat Hukum Adat dalam Pengujian Undang-Undang
Full text linkThe research on the existence of Indigenous Community (IC) is interesting to discuss heretofore. Previous studies have discussed the relationship between IC and Constitutional Court (CC) authority in judicial review of the Law (JR). Still, no research has comprehensively mapped the dynamics of granting the Litigants\u27 legal standing to IC in JR since the establishment of CC. This research aims to obtain a portrait of the dynamics and basis of CC for granting legal standing to IC as a Litigant in JR and providing a basic proposal for determining IC’s legal standing as a Litigant in JR. This normative legal research analyzes secondary data by comprehensively mapping decisions on JR with IC as Petitioner since CC was established in 2003 to 2019. The study\u27s results indicate several patterns of legal considerations and the basis of legal considerations for the CC in granting legal standing to IC as Litigants in JR