Jurnal Konstitusi
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Redesign of Positive Fictitious Efforts After the Job Creation Law : Redesain Upaya Fiktif Positif Pasca Undang-Undang Cipta Kerja
Full text linkThe Job Creation Law has not only changed positive-fictitious construction from ten to five days, but also abolished the administration court authority in deciding positive-fictitious applications. Naturally, every administrative action can be sued by the public to court with the aim that these actions follow legal rules and human rights values. Thus, the administrative court authority in deciding positive-fictitious applications is a control mechanism so that there is no abuse of authority from government. This article discuss: 1) the legal-historical and dynamics of positive-fictitious decisions; 2) the implications of positive-fictitious arrangements in job creation law, and 3) the redesign of positive-fictitious efforts after job creation law. The results of this research indicate that after the Job Creation Law, it is necessary to review the positive-fictitious decisions, especially by paying attention to the institution authorized to decide on fictitious applications, the use of AI applications, and the time of fictitious submissions
Legal Pluralism Perspective in Prosecuting Perpetrators of Bribery and Gratuities Corruption Crimes: Perspektif Pluralisme Hukum dalam Penindakan Pelaku Tindak Pidana Korupsi Suap dan Gratifikasi
Full text linkThe act of giving and receiving has been a practice since feudal times. Gifts or tributes to kings or officials, among other forms of giving, are part of traditional customs and are considered social etiquette. To address these issues, the authors analyze the theory of criminal liability, lawlessness, legal pluralism, and the legal system. This research uses a normative juridical research methodology. The findings reveal that there are no clear boundaries concerning regulations related to bribery and gratuities, specifically regarding gifts or promises in which civil servants or public officials can or cannot accept. The application of the bribery and gratuity clause was misdirected, resulting in innocent individuals being punished while the guilty were acquitted
The Law of Lawmaking as Quasi Constitutional Legislation: Undang-Undang Pembentukan PeraturanPerundang-Undangan Sebagai LegislasiKuasi Konstitusional
Full text linkConstitutional Court Decision No. 91/PUU-XVIII/2020 regarding the judicial review of the Job Creation Act, marked for the first time Court decide prevailed on behalf of petitioners in a procedural judicial review case. The Decision erects a legal discourse relating to the superiority of the Lawmaking Act against other statutes, in terms of its position as a ground for conducting a procedural judicial review. It departs from the common understanding that all statutes are equal, no one statute could be superior to others. Normatively researched while laboring statutory, conceptual, and comparative approaches, the study resulting two answers. First, the superiority of the Lawmaking Act would be best described by quasi constitutional legislation theory. Second, the majority opinions in recent Constitutional Court Decisions reflected the entrenchment of the Lawmaking Act, which fit the quasi constitutional legislation theor
Measuring the Compatibility of Conditional Decision in Formal Constitutional Review by the Constitutional Court: Menakar Kompatibilitas Putusan Bersyarat dalam Pengujian Formil Undang-Undang oleh Mahkamah Konstitusi
Full text linkThe existence of conditional decisions becomes dynamic in constitutional review, including their use in procedural constitutional reviews. Constitutional Court Decision No. 91/PUU-XVIII/2020 is the first decision to grant the petition and use a conditional decision model. Unfortunately, as mentioned earlier, using the conditional decision model in the decision results in discourse among various parties, including government institutions, law enforcers, academics, and the general public. With the growing discourse, this research aims to analyze the compatibility of the conditional decision model in formal constitutional reviews by examining various formal constitutional review decisions and the conditional decisions handed down by the Constitutional Court. This research indicates that the conditional decision is incompatible with formal constitutional review. This can be observed from the incompatibility of conditional decisions with the regulatory design of formal constitutional reviews and their legal consequences
The Concept of Additional State Capital to Cover the Lack of Capital in the Indonesian Investment Management Agency (LPI): Konsep Penambahan Modal Negara untuk Menutup Kekurangan Modal Lembaga Pengelola Investasi
Full text linkThe Investment Management Agency (LPI) is a sui generis institution managing long-term investment in Indonesia. This investment carries high business risks. UU Cipta Kerja and PP LPI regulates that should a loss that reduces the initial capital by 50%, the Government “can” increase the capital of LPI. The research problems are the concept of increasing capital to cover LPI’s initial capital shortage and its supporting mechanism to achieve state goals. This research uses a normative juridical method with a multi-disciplinary approach. The results are that the Constitutional Court as “the Guardian of the Constitution” must emphasize the concept of additional capital to cover LPI’s capital shortage must be interpreted, that the State is “obligated” to cover capital shortage as long as the existence of LPI is deemed necessary to add significant value for revenue. The approval from DPR is required to increase LPI capital, in order to achieve state goals
Perspektif Konstitusional Kedudukan Negara dan Swasta dalam Pengelolaan Sumber Daya Air Menurut UUD 1945
Full text linkThis research discusses the constitutional perspective of water resources management and its relation to the position of the state and the private sector in the management of water resources. This research examines the decision of the Constitutional Court in the judicial review of Law No. 7 of 2004 on Water Resources. There are two issues discussed in these studies namely (i) what is the constitutional perspective of water resource management and (ii) what is the position of the state and the private sector in water resources management? This research uses normative law research. The results showed that there are two constitutional perspectives in water resources management which are the perspective of control by the state under Article 33 paragraph (3) and the perspective of Human Rights perspective based on Article 28H of the 1945 Constitution. Based on the perspective of control by the state, management of water resources should be controlled by the state from upstream to downstream. The state should take control of water resources and establish distribution channels to meet the needs of the citizens on the water. From a human rights perspective, the state is obliged to protect, promote and fulfill the right to water. This obligation cannot be left to the private sector especially in water management based on its primary function. Therefore, the overall water management should be done by the state through the State Owned Enterprises or Regional Owned Enterprises. In fact, the monopoly of water management is a policy option that can be taken by the state. On the other hand, the private sector can take a part to commercialize water based on the use of water in its secondary function for industrial use through licensing mechanism. The study concluded that the state has an obligation to meet the citizens’ rights to water in order to meet the needs of a decent life based on primary functions of water. Secondary functions can be operated by private sectors
Strength of Constitutional Court Decisions in Judicial Review of the 1945 Constitution in Indonesia: Kekuatan Putusan Mahkamah Konstitusi dalam Pengujian Undang-Undang terhadap Undang-Undang Dasar 1945 di Indonesia
Full text linkThis research discusses the strength of the Constitutional Court\u27s decision regarding judicial review in Indonesia. The Constitutional Court is an institution of judicial power tasked with exercising the authority of judicial review born from the 3rd Amendment to the 1945 Constitution. In this study, the philosophical and normative foundations that form the basis for the strength of the Constitutional Court\u27s decision to conduct judicial review will be discussed. The method used is normative juridical, using secondary materials such as laws, decisions of the Constitutional Court, and related legal literature. This study\u27s results confirm that the Constitutional Court\u27s decision to conduct a judicial review has a powerful dimension of power. This power can be viewed from several angles, both philosophical and normative. In the philosophical aspect, the strength of the Constitutional Court\u27s decision lies in the principles of popular sovereignty and constitutional supremacy. While in the normative aspect, the strength of the Constitutional Court\u27s decision is based on the provisions of laws and regulations governing the authority and procedures of the Constitutional Court in conducting judicial reviews
Disregarding the Constitutional Court Decision Concerning the Prohibition of Concurrent Deputy Minister Positions: Pengabaian Putusan Mahkamah Konstitusi Terkait Larangan Rangkap Jabatan Wakil Menteri
Full text linkThe presence of the deputy minister position in the Indonesian government system has been a constitutional issue, both in its appointment and the issue of the prohibition of holding multiple positions. This article discusses Constitutional Court Decision Number 80/PUU-XVII/2019, which provides clarity on the constitutionality of the appointment of deputy ministers and the prohibition of holding multiple positions, including as commissioners or directors in state-owned or private companies. Despite this decision, the analysis indicates that the prohibition of holding multiple positions for deputy ministers is still disregarded, as some deputy ministers currently serve as Commissioners in State-Owned Enterprises (SOEs). This research uses a normative approach by analyzing secondary data. The result is that the Constitution is ignored because the Constitutional Court Decision regarding the prohibition of holding multiple positions for deputy ministers is not implemented. To address this non-compliance, if deputy ministers continue to hold positions as commissioners, the President should be able to dismiss them based on the State Ministry Law and Constitutional Court Decision, and impose sanctions in the form of an obligation to compensate the state’s financial loss incurred during the concurrent positions
The Power of Constitutional Court to Settle Disputes on Local Election Results : Kewenangan Mahkamah Konstitusi Memutus Perselisihan Hasil Pemilihan Kepala Daerah
Full text linkConstitutional Court Decision No. 85/PUU-XX/2022 abolished the proposal to establish a special court that have the power to resolve disputes on local election. As a result, that power shifted to Constitutional Court. This, de facto, is not the power designed to be exercised by the Court. Back tracked on historical trajectory of holding direct local elections, there has been a tug-of-war between judicial bodies on who have the legitimate power to settle the disputes on local elections results. This study aims to examine the power of Constitutional Court to adjudicate disputes on local election results. To achieve the research objective, this research framework will look at the historical context to have an overview of the dynamics of transposition of judicial bodies to settle the disputes. In addition, this also assess Constitutional Court decisions which provide interpretations as the basis for the legitimacy of the Court\u27s power to adjudicate local election disputes
Irregularity Protection of Citizens\u27 Constitutional Rights to the Administrative Silence: Ketidakteraturan Perlindungan Hak Konstitusional Warga Negara Atas Sikap Diam Badan dan/atau Pejabat Pemerintahan
Full text linkThe Administrative\u27s silence legally was an administrative error, however there are no standard to rule the mechanisms for protecting citizens against those an administrative error. This Research have two objectives. First of all, to analyze whether the changes of negative fictitional to positive fictitional are form of legal irregularity, secondly to study regulatory impact of Positive fictional after the issuance of Law number 11 of 2020 against on the protection of citizens\u27 rights. This Research use normative legal research. The Result of this research showed that repeal of norm can be done by changing those law itself or because of the constitutional court decision. negation of negative fictitional validity into chapter 3 law number 5 of 1986 to the positive fictitional through chapter 53 law number 11 of 2020 impact two things. First, remove access of constitutional citizens right, second, automatic approval decision without supervision can be used as a legality tool and may harm the third partie