Jurnal Konstitusi
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Prinsip Kedaulatan Rakyat Dalam Penentuan Sistem Pemilihan Umum Anggota Legislatif
Get PDFPendahuluanDalam proses perubahan Undang-Undang Dasar Negara Republik Indonesia 1945 terjadi pergulatan pemikiran tentang gagasan kedaulatan rakyat. Pergulatan pemikiran tersebut berujung dengan diubahnya ketentuan Pasal 1 ayat (2) UUD 1945. Awalnya, Pasal 1 ayat (2) UUD 1945 berbunyi “Kedaulatan adalah ditangan rakyat, dan dilakukan sepenuhnya oleh Majelis Permusyawaratan Rakyat”. Kemudian diubah pada saat perubahan ketiga UUD 1945 sehingga rumusannya menjadi “Kedaulatan berada di tangan rakyat dan dilaksanakan menurut Undang-Undang Dasar”. ..
Tafsir Misoginisme dan Inkonsistensi Birokrat (Implikasi Putusan MK No. 4/PUU-VIII/2010)
Get PDFThe verdict of Constitutional Court (MK) Number 4/PUU-VIII/2010 can be described as a verdict blocking chances for the civil servant (Pegawai Negeri Sipil) to represent himself/herself as the head of executive in the district such as governor, mayor, regent, and any others in the mayor general election (Pemilukada) because one of the prerequisites to be a civil servant must be followed by a resignation letter. This prerequisite cannot be considered as a form of discrimination and injustice for the civil servant, yet as a kind of protection through the strategic role of the civil servant. If the civil servant still keeps going on its track, as a bureaucracy devotee, then people’s civil rights must have been fulfilled
Sikap Kritis Negara Berkembang terhadap Hukum Internasional
Get PDFInternational law is a political instrument of developed states to intervene developing states. Law can function for numerous interests such as, inter alia, a political instrument. Intervention of developed countries to developing states can happen in two ways which both ways cannot be regarded as violation of international law. The involvement of a state in an international agreement denotes that the country intentionally burdens itself to carry out obligation that has been agreed upon as stated in the agreement. One of the obligations is to transform the contents of the agreement to its national law. The involvement of developing countries in international law is an intention to create breakthrough to face competition with developed states. With the existence of WTO, developing states can defend their rights which are violated and can force developed states to negotiate. The availability of legal remedy provide strength to developing states to force developed states in particular cases
Konflik Hukum Antara Ketentuan Hukum Pidana Islam dan Hak-Hak Sipil? (Telaah Konsep HAM dan Implementasi Ratifikasi ICCPR dan CAT di Indonesia)
Get PDFCan death penalty or corporal punishment be imposed by a state since it is required by the Shariah, but, at the same time, it is against state’s obligation to guarantee civil rights as documented in such international human right laws as ICCPR and CAT? This article is to analyse the so called conflict of law between the requirements of Islamic criminal law and civil rights in Indonesia with particular reference to its implementation in Nanggroe Aceh Darussalam province. There are growing demands of some Muslims to the implementation of hudud in Indonesia and several Qanun Provinsi Nanggroe Aceh Darussalam have been enacted too. According to the proponent of such implementation, this depicts that the state respects its citizens’ belief and culture which is guaranted under the aegis of the right to self determination. However, Indonesia has ratified some international human right laws which require the state to respect the right to life and prohibit torture and cruel, inhuman or degrading punishment. How should the state react? this article argues that an alternative approach which is able to bridge prolonged polemic between universalims and cultural relativisms with regards to the validity of international human rights norms when being implemented to different legal cultures is very much needed. This is important in order to reduce resistence against international human right laws which are important to safeguard civil rights especially when the criminal justice system of a country has not fulfilled the due process of law
Mekanisme Pemakzulan Presiden dan/atau Wakil Presiden Menurut UUd 1945 (Antara Realitas Politik dan Penegakan Konstitusi)
Get PDFThe Inquiry rights was the implementation of the oversight function of House Representative (DPR) to Presiden/and or Vice President. The use of inquiry right as a political strategy in impeachment mechanism to President/and or Vice President depend on reality and political consensus of the DPR, so there are possibilities and tendencies that the rule of law and democracy are not be able to maintained as stipulated in Article 1 the 1945 Constitution. The decree of impeachment of the President and/or Vice President as provide in the 1945 Constitution tend unable to uphold the rule of law when the Constitutional Court decided the President and / or Vice President violated the constitution, namely the dismissal of the President and or the Vice President made by the Assembly through a political decision (politeke beslssing). The efforts to maintains consistency of the concept of law as stipulated in Article 1 paragraph (3), Article 7B paragraph (3) and paragraph (7) of the 1945 Constitution, without opening the chance intervention of political interests and obligations of the Assembly to implement the decision of the Constitutional Court. Therefore, the rule of law must be a cornerstone in the practice of constitutional law in Indonesia
Mencermati Ratio Decidendi Mk Dalam Putusan Nomor 122/Puu-Vii/2009 Tentang Penderogasian Norma Hukum dan Sifat Putusan PTUN
Get PDFRatio decidendi of the Constitutional Court that said he was not an organ that has an authority to review constitutional rights loss of applicant, beside contrary to constitutional protection principles, also contrary to functions of the Constitutional Court as the guardian of the constitution, the protector of citizen’s constitutional rights dan the protector of human rights. The Constitutional Court should avoid to put his legal reasoning (in his ratio decidendi) that verdict of administrative court has not a legal nature – erga omnes. He should become aware that an administrative dispute is a public dispute bound under public law principles
Daerah sebagai Pihak dalam Kontrak Penanaman Modal Internasional (Studi Kasus Provinsi Aceh)
Get PDFLegal certainty is an important factor in developing international investment contracts in regional areas. How ever, it cannot be accomplisehed yet because of, among others, obscurance and inconsistance of laws regulating capacity to contracts for regional sub-divisions in Indonesia. The capacity to contract of the regional sub-divisions can be ascertained based on criteria of definition of the international contracts which is different from treaties, legal personality theory on the subject, and object concerning local government affairs. This article concludes that regional sub-divisions, such as Aceh Province, has capacity to be a party to international contracts, therefore, inconsistence laws should be adjusted
Antara Cita-cita Konservasi dan Kerentanan Masuk Sandera Eksploitasi (Kajian Atas Beberapa Judicial Review terhadap UU Kehutanan)
Get PDFThis paper aims to discuss some decisions of the Constitutional Court on judicial review of the Forestry Law. There are both positive and negative. A positive decision, to my opinion, can seen in No 013/PUU-III/2005 and No 021/PUU-III/2005. The reason I regard as a positive is based on the consequences of decision, which legitimates article about the ban on illegal logging in forests and the confiscation of equipment for stealing wood as constitutional ones. It is supporting conservation.A decision that negatively affects the spirit of conservation is noted in decision No. 003/PUU-II/2005. This ruling tends to prioritize legal certainty for mining companies to resume an open mine system in the preserved forestry. The author saw this one as reflection of the legal policy construction on forestry law that is taken hostage by exploitation interests.This paper, furthermore, tries to uncover the legal policy construction on forestry law as the base of problem sources. Therefore, the author needs to search for not only informations which are in the textual decision, but also ones are beyond it. The larger model of legal policy can be seen from the process of determining emergency condition when formulating the Stipulation of Government Regulation in Lieu of Law (Perpu), then when changing the Perpu become law, and government regulations concerning forestry post-decision of the Court Number 003/PUU-II/2005.The advantage of this paper is on efforts to uncover the source alignments of forestry law on the big corporation based on decision number 003/PUU-II/2005. It to know this source that could be an important basis to understand why decision of the Constitutional Court on the preserved forest is taken hostage
Implikasi Pergeseran Sistem Politik terhadap Hukum dan Birokrasi di Indonesia
Get PDFCoalition can be the effective way to collect the power for struggle in the competitive politics. In Indonesia, after the reform era, the coalition system being the most popular system that granted by the constitution. Phrase ”coalition of political parties” in the article number 6A point (2) UUD 1945 shows us that the coalition system is the constitutional and the fix way. From all the historical story about the coalition of political parties in Indonesia, we can make a conclusion that the coalition system wich is exist in Indonesia is just coalition made by interest, not ideology. Coalition only to reach the “threshold”. Political parties only thinking about how to complete the mission to propose the candidate. Surely, That’s all the problem. We can see that the coalition system in Indonesia just make some paradox. For example, in presidential election 2014, in one hand we can see the batle between “KMP” and “KIH”, but in the other hand, we cand find a different situation in local politic competition. On 9 December 2015, The simultaneous regional election was completed held, and I saw that the battle between KMP and KIH wasn’t happened in that moment. Based on the fact from KPU, we can find in some region, the inconsistence coalition was built by the political parties which is member of KMP join with member of KIH. That condition shows us that the coalition system in Indonesia is just based on interest. There is no linear/consistence coalition between central and local, so automatically we can find a question, “where is the platform, vision and mission of political party in Indonesia? And How about the impact to the bureaucratic system between central and local government?. Finally, The Author is trying to answer the questions in this paper
Mewujudkan Keadilan Melalui Upaya Hukum Peninjauan Kembali pasca Putusan Mahkamah Konstitusi
Get PDFThe reconsideration is an extraordinary legal remedy to the decision of Court that have legally binding (inkracht van gewisjde). The Decision of the Constitutional Court No. 34/PUU-XI/2013 stated that extraordinary legal remedy aims to obtain justice and truth material, so the provisions of Article 268 paragraph (3) Criminal Procedure Code states that, “request reconsideration of a decision can only be done once only” contrary to the 1945 Constitution and does not have binding force. The decision of Constitutional Court raises the pros and cons, on one side there are statements that reconsideration more than once is an effort to protect the rights of the public in obtaining justice, but on the other side there are statements that reconsideration is more than once is a violation of the principle of legal certainty. After analyzing the decision of the Constitutional Court No. 34/PUU-XI/2013 it could be concluded that, first, the reconsideration is more than once in accordance with the public interest to obtain justice in law enforcement, because in obtaining justice and truth material can not be limited by time. Second, the decision of the Constitutional Court are final and binding, despite raises the pros and cons, then all are required to implement the decision of the Constitutional Court. Therefore, the Supreme Court is expected to soon complete the Regulation of the Supreme Court about filing reconsideration in criminal cases by adjusting the decision of the Constitutional Court