Jurnal Konstitusi
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Pemberhentian Antar Waktu Anggota KPu (Analisis Putusan Mahkamah Konstitusi No. 80/Puu-Ix/2011)
Get PDFThe formulation of article 27 paragraph (1) letter b of Law Governing the election and article 27 paragraph (3) was considered discriminatory because it prohibits members of the general election commission to resign before the end of his term. If resigned for reasons that cannot be accepted and being dishonorably are required to reimburse the honor as much as 2 (two) times the accepted. That provision was filed judicial review to the Constitutional Court. The Constitutional Court states the phrase.... with an acceptable reason’ in article 27 paragraph (1) letter b and article 27 paragraph (3) of Law No. 15 of 2011 is contrary to the Constitution and has no binding legal force. The Constitutional Court also assess interpretation ‘acceptable reason’ it has narrowed the freedom of a person to get a job and a better income in order to be better able to meet the right to life, sustaining live and life
Menakar Konstitusionalitas sebuah Kebijakan Hukum Terbuka dalam Pengujian Undang-Undang
Get PDFThis study attempts to elaborate the definition of the “open legal policy” concept which has stated by the Constitutional Court as the autonomy of the Law- making body whenever UUD 1945 as the constitution did not regulate particular substances of a Law that is being made. In order to prevent this autonomy leans toward arbitrariness, it is necessary to establish a model of review towards open legal policies. One feasable option that the Constitutional Court could adapt is the "maximin" strategy (selecting the best option in numbers of bad possibilities) which is developed from the rational choice approach
Konstitusionalitas Hak Masyarakat Hukum Adat dalam Mengelola Hutan Adat: Fakta Empiris Legalisasi Perizinan
Get PDFGreen constitution placed Indonesia as a country that has a constitutional juridical consequences constitution in 1945 to apply the principles of ecocracy, that is any wisdom or development in the field of economy always looking environment in all sectors, including forestry. The study object is the Constitution Court decision No. 35/PUU-X/2012 with indigenous people’s subject who has violated his constitutional rights. The purpose of this study are: first, to examine and analyze the consistency of state authority over the doctrine of welfare state in the management of state forest with indigenous authorities in the indigenous forest management based on socio-legal study of the Constitutional Court’s decision, and second, guarantees and analyze the implementation of the principles ecocracy over strengthening the constitutional rights of indigenous people as a living law in the management of indigenous forest, as a logical consequence of Indonesia adherents of democracy based on the environment and green constitution. The author uses a methodology based on assessment of the Constitutional Court decision, by examining the socio- legal aspects of this decision. The results of this study revealed that first, there is a relationship between the state is the state forest, and the state is customary forests. To the state forest, the state has full authority to organize and decide the inventory, allocation, utilization, management, and legal relations that occur in the forest region of the country. The indigenous forests, state authority is limited extent authorized content covered in indigenous forest. Indigenous forest management rights of indigenous communities, but if the development of indigenous communities in question no longer exists, then the rights of indigenous forest management falls to the Government. Second, implementation of national and regional development has always prioritized economic element or in the context of regional autonomy prefers the original income, regardless of environmental democracy based on sustainable development and environmentally
Korupsi dan Pembalikan Beban Pembuktian
Get PDFThis paper was intended to answer a question on the extent of the effectiveness of a reversal burden of proof as stipulated in positive (prevailing) Indonesia law, that is, as provided for in Law Number 31 of 1999 on Eradication of Corruption Crime. Then, a problem that rose next was: could the application of reversal burden of proof in proving a corruption crime case prevent or reduce or even eliminate totally corruption crimes in Indonesia? This research built on a theoretical frame of thought from Roscoe Pound, who maintains that law is a tool of social engineering. This concept was cited by Muchtar Kusumaatmadja, who adapted it to Indonesia conditions and transformed it to be law as a social engineering medium. Law should be made as a medium of reforming and resolving all problems that emerge in community, including corruption crimes. One of the things to reform is the law of proof system, that is, from a conventional proof system to a reversal system. This paper was written by a juridical-normative method, that is, by studying legislations, both contained in laws and in literature/books on legal science, particularly legislations relating to reversal burden of proof. Then, the results, in a form of juridical aspect, were written in a descriptive-analytical form. The conclusion of this research was an answer to the problems put forward above, that is: Corruption crimes have been occurring continuously till now in Indonesia. Thus, Law Number 31 of 1999, Article 37, has not been effective yet in eradicating corruption crimes. Therefore, it needs to apply a pure reversal burden of proof by avoiding the incidence of bureaucratic chaos
Implementasi Putusan No. 27/PhPu.D-VIII/2010 Mengenai Perselisihan hasil Pemilihan umum Kepala Daerah Kabupaten Lamongan
Get PDFThe objection of petitioner on the recount results by the Election Commission of Lamongan on the orders of the interlocutory injunction of the Court ,was not examined further and be heard simultaneously with the Commission report on the implementation of interlocutory injunction in a hearing open to the public, and thereafter immediately the Constitutional Court considered the objection has no juridical value. The final decision then confirmed the Commission’s decision on the result of the recounting. Nonetheless, the function of the interlocutory verdict must be understood as a mechanism to prepare the final verdict. Therefore, the results of the interlocutory verdict must be heard and examined in a session open to the parties and the public, to be used as the basis for a final decision. The hearing process before the final verdict has been decide, does not end with the announcement of the interlocutory verdict. Implementation of the Constitutional Court decision on the district election dispute has been uninhibited, but in one case. Although the number is quantitatively insignificant, it is qualitatively very important as a lesson learned in that the Court is still in need to improve its performance in guarding the consolidation of democracy
Menegaskan Kembali Komitmen Negara Hukum: Sebuah Catatan Atas Kecenderungan Defisit Negara Hukum di Indonesia
Get PDFBila dilacak akarnya, gagasan tentang negara hukum, adalah kelanjutan dari pemikiran tentang pembatasan kekuasaan, sebagai sealah satu prinsip dari konstitusionalisme-demokrasi. Inti dari pemikiran tentang negara hukum, adalah adanya pembatasan terhadap kekuasaan, melalui sebuah aturan yuridis—undang- undang. Seperti diungkapkan Andrew Heywood, menurutnya dalam ruang lingkup yang sempit, konstitusionalisme dapat ditafsirkan sebatas penyelenggaraan negara yang dibatasi oleh undang-undang dasar—inti negara hukum. Artinya, suatu negara dapat dikatakan menganut paham konstitusionalisme jikalau lembaga-lembaga negara dan proses politik dalam negara tersebut secara efektif dibatasasi oleh konstitusi. Sedangkan dalam pengertian yang luas, konstitusionalisme adalah perangkat nilai dan manifestasi dari aspirasi politik warganegara, yang merupakan cerminan dari keinginan untuk melindungi kebebasan, melalui sebuah mekanisme pengawasan, baik internal maupun eksternal terhadap kekuasaan pemerintahan (Heywood, 2002: 297). ..
Konstitusionalitas Norma Sanksi Pidana sebagai Ultimum Remedium dalam Pembentukan Perundang-undangan
Get PDFIntentionally, criminal sanction was seen as an effective solution for the problem of crimes. On the other hand, criminal sanctions also pose as an implementation of state responsibility in maintaining public security, order and legal protection of its citizens. In the development of Indonesian legal system, most of the laws enacted by the state have included criminal sanction in its substance. Therefore, there is a shift in the political law (legal policy) regarding the application of criminal sanctions, which intentionally pose as a last resort (ultimum remedium) has shifted towards first resort (primum remedium). The inclusion of criminal sanctions in the legislation as primum remedium might result on the violation of the constitutional rights of Indonesian citizens. In addition, there is an emergence of numbers in applications of judicial review on the laws regarding the criminal sanctions issues. This research focuses to examine and determine about the position of criminal sanction norms in the law and about the deliberation and reasoning of the Constitutional Court in reconstructing the structure of criminal sanctions in law from primum remedium toward ultimum remedium. The research showed that most of the laws enacted from 2003 through 2014 have adapted the norms of criminal sanctions as primum remedium. This can be seen in the construction of the criminal forfeiture clause, where in the contrary, the concept of punishment states that criminal sanctions should be positioned as ultimum remedium. In the meantime, the Constitutional Court as the protector of citizens’ constitutional rights and protection of human rights has a very important role in restoring the position of criminal sanctions as ultimum remedium. This, by example, was set forth in the Constitutional Court decision 4/PUU-V/2007 on June 19, 2007 regarding the review of Law No.29/2004 on the Medical Practices
Dilematika Putusan Mahkamah Konstitusi vs Kekuatan Politik dalam Impeachment Presiden
Get PDFThe involvement of the constitutional court of RI in examining and ruling on the case of presidential impeachment is textually not the authority but obligation that whether or not presidential impeachment happen during president’s terms of office will be determined by the supporting political strength in the MPR session. The decision taken in the session should be based on the decision of Constitutional Court as the interpreter and the guardian of the constitution. This condition causes Constitutional Court decision becomes dillematic because it will be determined by the political strength in the session of the MPR. Besides,the fact that three of the nine judges are proposed by the President and three other are proposed by DPR is also dilemmatic
Kedudukan Outsourcing Pasca Putusan Mahkamah Konstitusi nomor 27/PUU-IX/2011
Get PDFThe presence of the labor law is often challenged by the supporters of the interests primarily of the workers, particularly with regard to setting Outsourcing Employment Agreement in Indonesia. The reason the opponents are, among others, that the outsourcing arrangement only exploit and marginalize the humanity of those who have been guaranteed by the constitution. Various attempts have them do to rule as discriminatory was removed from employment practices in Indonesia, including the choice of law rules of the test material to the Constitutional Court. Finally, through Decision of The Constitutional Court No. 27/PUU-IX/2011, the Court granted the petition of workers by declaring unconstitutional some provisions of the Employment Agreement Outsourcing. In addressing the decision of the Court, the Government through the Ministry of Manpower publishes Permenakertrans No. 19, 2012. The problem is that the Constitutional Court’s decision should not be followed up with legislation level ministerial regulations. In addition, it violates the rules Permenakertrans the higher, the Manpower Act for doing addition and subtraction of the torso aforementioned law. Not only that, now, both the workers and the employers also feel is not in line with the employment agreement outsourcing arrangement within the meaning of the Permenakertrans
Konstruksi Keyakinan Hakim Mahkamah Konstitusi dalam Putusan Perselisihan Pemilukada
Get PDFThe fact is the basis of law for judges of the Constitutional Court in decisions. The fact is the law of another language of the evidence. The decision thus reflects the role of judges in unearthing, interpreting and discovering the laws (rechtsvinding) to resolve disputes elections of regional heads. The role of the judge is not out of conviction to assess the evidence. One of the tools of evidence that requires precision and accuracy in their assessments are witnesses, because witnesses can lie or correct the error and blamed the truth