Jurnal Konstitusi
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Implikasi Re-Eksistensi Tap Mpr dalam Hierarki peraturan perundang- Undangan terhadap Jaminan atas Kepastian Hukum yang adil di Indonesia
Get PDFPost-enactment of Act Nr. 12 of 2011, MPR Decree was put again the hierarchy of legislation, which cause problems in the context of the state of law of Indonesia. This was normative legal research. Now, the number of MPR Decree is only 6 decrees remaining, so re-existence and placement of MPR Decree is not relevant. Hierarchy should be made by simplification approach by reducing the nomenclature of law in the hierarchy of legislation. MPR Decree should have not been included in the hierarchy, especially under the Constitution. If the MPR Decree still be placed under the Constitution, we need to hold the mechanism to review MPR Decree, if there is a contradiction with the Constitution or the restriction of human rights, which actually should not be limited by the MPR
Kejahatan Kerah Putih, Kontraterorisme dan Perlindungan Hak Konstitusi Warga Negara dalam Bidang Ekonomi
Get PDFThis article reviews the relationship between white-collar crimes, terrorism, and Indonesia’s counterterrorism policy. Indonesia’s counterterrorism policy yet include white-collar crimes, especially in economy, monetary, and banking, as a form of terrorism. This is because two things: the ignorance of the law enforcements on the white-collar crimes’ modus operandi and its reality that growing fast due to the development in science and technology. As a result, although white-collar crimes are so destructive and growing rapidly but Indonesia’s legal instruments to date did not have an integrated codification of law to eradicate it. Furthermore, Indonesia’s counterterrorism policy looks lopsided because it focused on street crimes or blue-collar crimes, the crimes committed by the lower class strata in such vulgar, unsophisticated, and violent natures. That is in contrast with the white- collar crimes which are so corrupt, destructive, and wicked because it conducted in a sophisticated, fraudulent, and systematic way. Thus, if the definition of terrorism only focuses in the type of street crimes then the corrupt practices, fraud, and deception in the white-collar crimes will be difficult to unfold and it seemed even strengthened, protected, and ultimately have a great potential in undermining the national stability
Menguatkan Hak Masyarakat Adat Atas Hutan Adat (Studi Putusan MK Nomor 35/ PUU-X/2012)
Get PDFIf the Government is always consistent to ensure the rights of indigenous people over ulayat forest, of course there will be no legislation which is contrary to the constitution, because the constitution had always guaranteed it. The Decision of Constitutional Court Number 35/PUU-X/2012 which declares that Article 1 point 6, Article 4 paragraph (3), article 5 paragraph (1), paragraph (2), paragraph (3) of Law 41/1999 on Forestry unconstitutional shows that there is inconsistency in regulating indigenous forest. In the perspective of human rights, the articles have a spirit of protection of indigenous peoples’ rights over ulayat forest which is repressive derogable in nature. Meanwhile, the Constitutional Court decision has the spirit of progressive derogable protection. The first spirit means that because the state could derogate the recognition of ulayat forest if it is incompatible with the development of society and contrary to the principles of the Unitary State of the Republic of Indonesia, then the ulayat forest should be seen as the state forest. In the contrary, the next spirit means that although the state could derogate the recognition based on the preceeding requirements, the ulayat forest should be defined as ulayat forests. The first spirit is a repressive one because it aims at subordinating ulayat forests in the name of state forests. Meanwhile, the progressive spirit has the character of liberation and empowerment, it aims at removing the term of ulayat forests from state forests
Inkonsistensi Paradigma Otonomi Daerah di Indonesia: Dilema Sentralisasi atau Desentralisasi
Get PDFThis study aimed to analyze trajectory of regional autonomy in Indonesia. There are two important things in discussing about regional autonomy in Indonesia. Firstly, dilemma between decentralization or centralization as basic paradigm in the policy of regional autonomy. Secondly, regional autonomy just creates oligarchy regime, primordialism, and politic of clientelism. Implementation of regional autonomy has been became new problems for Indonesia which adopted unitary state system. Regional autonomy in post New-Order era intended to enhancing participation of society in development project and local democracy was hijacked by many interest from elite. In other words, regional autonomy more aligned to elite rather than the people
Tafsir Konstitusional Pengujian Peraturan di Bawah Undang-Undang
Get PDFParticular problem in judicial review frequently found is there a contradiction between the subsidiary legislation and the constitution. Unfortunately, in several Supreme Court verdict on judicial review, there is no usage of constitutional interpretation on their legal reasoning. However within domain of Supreme Court authority, constitution is not the touchstone, but constitution perspective must be included to maintain consistency of legislation hierarchy. There are two reasons on that posibilities, first the approximation of constitutional review by the court and second, the consequences of Indonesian’s legal system that implementing legislation hierarchy. Responsibility as the guardian of constitution not only applied on Constitutional Court, but on all the state institutions including every citizen. In the context of guarding consistency of legislation hierarchy, Supreme Court might also develop constitutional interpretation in order to ensure conformity regulations that is examined to the constitution. In addition, meaning of the constitution can be developed by a judge that can be found in accordance with contextuality. The perspective is assessed to highlight more detailed the mapping of the use of constitutional interpretation on Judicial Review in supreme court post amandment of Constitution of Republic Indonesia 1945. This article formulatesthe notion of constitutional interpretation on Judicial Review. Within this concept, will be prepared by the use of mapping of constitutional interpretation on Judicial Review in supreme court post amandment of Constitution of Republic Indonesia 1945. Thus this research was intended to make the judge use constitutional interpretation. Of course if the recommendations are applied, it can be achieved not instantly in a short time. With the use of Constitutional interpretation on Judicial review in supreme court, the constitutionallity can be reflected later on legislation hierarchy as a whole legal system
Legal Reasoning Pada Perkara Pengujian Undang-Undang (Studi Perbandingan)
Get PDFArticle 24 C of Third Amendment of Constitution Law 1945 is the basis of the Constitutional Court to give the final and binding decision in terms of law examination against Constitution Law 1945. Constitutional Court has a restriction to not examine the nebis in idem case unless there is a different substance of Constitutional Law 1945 which is used as the based of examination. In this paper, there are 12 (twelve) Constitutional Court’s decisions on law re-examination against the Constitutional Law 1945 because using different substance of Constitutional Law 1945 as the based of examination. Based on the research, which has been conducted, there are legal reasoning differences in accepting and deciding the cases which have been decided previously which the Court uses different legal interpretation and construction in deciding the case. Thus, this paper will examine and compare legal reasoning methods which are used in deciding the case
Konstruksi Pertentangan Norma Hukum dalam Skema Pengujian Undang-Undang
Get PDFThe study elaborated on the construction of “conflict of legal norms” in constitutional review scheme. There are eleven problems as result of this study, which include: The ideology of the state “Pancasila” as a standard review of “conflict of legal norms” act against 1945 constitution; Constitutional court has a review of act passed before and after 1945 Constitution amendment with standard of 1945 constitution; 1945 constitution is “the living constitution” for the enforcing of law and justice; Constitutional court has authority to review of act against 1945 constitution by vertical and horizontal perspective; enforceability aspect of constitutional review is a part of material review, not formal review; the meaning of “conflict of legal norms” must be comprehend elaborated in the decisions to enforcing of law and justice; Constitutional Court does not used priority of the original intent interpretation and remained unfulfilled of other model interpretation if original intent interpretation caused ineffectiveness of constitution; non constitution be permitted for the formal review, but in material review is not implement; “nemo judex idoneus in propria causa” of procedural law principle can remained unfulfilled by “ius curia novit” principle to promote of the 1945 constitution; the formal review of “conflict of legal norms” can remained unfulfilled by utility principle to priority of legal substance; the retroactive decision caused legal uncertainly
Corporate Social Responsibility: A Constitutional Perspective
Get PDFoai:ojs.jurnalkonstitusi.mkri.id:article/1Originally, the concept of CSR was come from business ethic values that impose corporation’s ethical responsibly to their social and natural environment. That development of ethical business was part of social consciousness on the degradation of environment as impact of corporation activities. This reality also raised the deep environmental ethic or deep ecology which challenge anthropocentrism economical development and urged ecocentrism development. In Indonesia, this phenomenon was marked by the enactment of Act 4/1982 on Environmental Management.The constitutional debate on CSR just began when the Indonesian Constitutional Court heard and decided the judicial review case of Act 40/2007 on Limited Liability Company which stipulate CSR mandatory law for corporation that have activity in natural resources areas. In its decision, Constitutional Court refused the petition. This means that the court affirmed that CSR mandatory law is not contrary to the Constitution. However, the legal argumentation of the court was not shifted from economical and environmental perspectives. The constitutional basis of the decision is Article 33 (4) concerning national economic principles and Article 33 (3) concerning state power on land, water, and natural resources. The Constitutional Court did not use the human rights concept as the source of CSR mandatory law.In constitutional law perspective, we can justify the CSR mandatory law from human rights guarantee on the constitution. CSR is one of the obligations to respect, to protect, to fulfill, and to promote human rights. Those obligations are not only bind over the government, but also corporation and all citizens. In that perspective, CSR should be mandatory law not only for the corporation which manage or correlate with natural resource, but for all corporations that operate in the middle of the society
Menanti Pelaksanaan Penahanan dan Pidana Penjara Yang Lebih Humanis Di Indonesia
Get PDFLATAR BELAKANG MASALAHPara pendiri negara Republik Indonesia telah mencantumkan tujuan nasional di dalam Alinea IV Pembukaan UUD 1945, yakni melindungi segenap bangsa Indonesia dan seluruh tumpah darah Indonesia, mencerdaskan kehidupan bangsa, memajukan kesejahteraan umum, dan ikut serta dalam perdamaian abadi. Tujuan nasional tersebut akan dicapai melalui negara hukum Indonesia. Salah satu sistem pemerintahan Indonesia dalam penjelasan UUD 1945 adalah bahwa negara Indonesia adalah negara yang berdasar atas hukum (rechtstaat) bukan berdasarkan kekuasaan (machtstaat). Dalam amandemen UUD 1945, penjelasan telah dihapus, namun sistem pemerintahan tersebut dimasukkan ke dalam Batang Tubuh, yakni Pasal 1 ayat (3) : Negara Indonesia adalah negara hukum. ..
Kompatibilitas Metode Pembuktian dan Penafsiran Hakim Konstitusi dalam Putusan Pemilukada
Get PDFDecision-making in the Settlement of Local Election Dispute at the Constitutional Court is based on the conviction of the justices after examining evidence submitted by the parties. Meanwhile, the law has limited the authority of the Court which is simply to rule on the result of vote count in the local election. Therefore, through interpretation, the Court has created new norms in its decision concerning local election.In some of its decisions, the Court broadened its authority in the settlement of local election dispute which is to include the process of the election. The dictum of the decision does not merely follow what is stated in the law. There is compatibility in the justices’ conviction based on interpretation done by the justices regarding the authority of the Court in deciding Local Election Dispute and in the choice of dictum of the decision which is different from what has been stated by the law