Jurnal Konstitusi
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The Problem of Citizenship Requirements for Presidential and Vice Presidential Candidates in Indonesia: Problematika Persyaratan Kewarganegaraan Calon Presiden dan Wakil Presiden di Indonesia
Full text linkThis article examines the problematic citizenship requirements of presidential and vice presidential candidates in Indonesia. The research method used is qualitative, with normative juridical research and constitutional comparisons with fifty countries in the world that adhere to presidential government systems. The results of the study show that each country regulates the citizenship requirements of Presidential and Vice-Presidential Candidates in its constitution. The regulation of the citizenship requirements for the candidates for President and Vice President in Constitution of the Republic of Indonesia is ideal because it is not discriminatory and also does not have multiple interpretations. Based on a comparison with fifty countries, the regulation of citizenship requirements in Indonesia falls into the first category, namely citizen/nasionality by birth/born. The challenge for Indonesia in the future is how to implement these constitutional provisions without being politicized, especially when the Presidential and Vice-Presidential Elections will be held
The Problems of Appointment Acting Officer of Regional Head in the Transition Period Before the Election of 2024: Problematika Pengisian Jabatan Penjabat Kepala Daerah di Masa Transisi Pra Pilkada 2024
Full text linkThe appointment of officials during the 2024 pre-election transition period was carried out by central government to fill the transitional period for regional heads due to the postponement of the regional elections. This research is intended to know the mechanism for filling the acting officer and concluding that the results of filling the positions referred to the optimal implementation of regional government. This research is an empirical legal research. The appointment of positions has been carried out by central government, but there is no measurable mechanism in the process because there are no specific rules governing this matter. The Constitutional Court has mandated to issue implementing regulations for Article 201 Law Number 10 Year 2016 so that placement of officer is within the corridors of a rule of law and democracy. Unfortunately the government did not heed the mandate, resulting in various problems in the process of appointing positions
Constitutionality Holding Sub Holding SOEs in the Field of Electricity Supply Business: Konstitusionalitas Holding Sub Holding BUMN di Bidang Usaha Penyediaan Ketenagalistrikan
Full text linkThis research discusses the limitations on the privatization of State-Owned Enterprises (BUMN) in the field of electricity supply and itscorrelation with the implementation of the sub holding structure inPT PLN (Persero). This discussion is crucial, given that electricity is avital sector of production for the nation and profoundly impacts thewell-being of the general populace, necessitating state control. The studyadopts a normative legal research approach, employing conceptualframeworks and secondary data. The research’s conclusion is that theconstitution restricts the privatization of State-Owned Enterprises in theelectricity supply sector, emphasizing that only State-Owned Enterprisesare authorized to manage electricity-related businesses. National orforeign private companies are only permitted to participate if invitedto collaborate by State-Owned Enterprises. The implementation of thesub holding structure in PT PLN (Persero), utilizing the shareholderscheme involving Geothermal Co and New Energy Co as subsidiaries,contradicts the 1945 Constitution because it leads to an escape fromstate control
Reformulation of Public Participation in Fast- Track Legislation in an Open Cumulative National Legislative Program: Reformulasi Partisipasi Publik dalam Pembentukan Undang-Undang secara Cepat pada Prolegnas Kumulatif Terbuka
Full text linkOne of the factors contributing to the suboptimal implementation of “meaningful participation” is the exploitation of legal loopholes to expedite the creation of open cumulative draft laws (RUU). This issue is further complicated by Constitutional Court Decision Number 90/PUU XVIII/2020, which states that the formation of open cumulative draft laws does not necessitate general public participation, thereby posing a distinct challenge. In the context of this matter, by employing a normative legal research method, the author examines the urgency of public participation in the development of open cumulative draft laws through a “fast track” legislative process. The study’s results cover three main topics: (1) the mechanism of open cumulative draft law design and its relationship to “fast track” legislation; (2) the legal implications stemming from the Constitutional Court’s considerations regarding public participation in the creation of open cumulative draft laws; (3) the essence of integrating public participation into open cumulative draft laws using the “fast track” legislative method
Positive Legislature Decisions by the Constitutional Court: Putusan Positive Legislature oleh Mahkamah Konstitusi
Full text linkThe shift in the role of the Constitutional Court, which has tended tobecome a positive legislator in the last 11 years, began with the existenceof Constitutional Court Decision Number 48/PUU-IX/2011, which, in itsessence, eliminated the limitations on the role of constitutional judges inrendering decisions with a regulatory nature. Consequently, in the last11 years, out of 198 accepted decisions, 107 positive legislative decisionswere identified, and when presented, these positive legislative decisionsconstituted a majority of 54% of the total decisions. The practice ofpositive legislation itself appears to be ineffective, primarily due tothe fact that out of the total 107 decisions, only 26 decisions wereimplemented by the addressees of the decisions. Through normativejuridical research using a statute approach and conceptual approach,this study is focused on understanding why the practice of positivelegislation is not optimal. This is because there is no legal basis, it doesnot fall within the Constitutional Court’s domain to decide cases witha regulatory nature, and there is no obligation for the addressees ofthe decisions to implement positive legislative decisions
Pengaruh Aktor Eksternal terhadap Inkorporasi HAM dalam Konstitusi Republik Indonesia Serikat Tahun 1949: Pengaruh Aktor Eksternal terhadap Inkorporasi HAM dalam Konstitusi Republik Indonesia Serikat Tahun 1949
No full textArtikel ini mendiskusikan tentang bagaimana inkorporasi jaminan HAM dalam Konstitusi Republik Indonesia Serikat (KRIS 1949) telah dipengaruhi oleh konstelasi politik yang ditandai dengan keterlibatan Belanda dan Perserikatan Bangsa-Bangsa (PBB) selaku aktor eksternal. Kajian dalam artikel ini terbilang sebagai studi sosio-legal karena karakternya yang interdisipliner, dengan lebih spesifik menjurus pada penelitian sejarah hukum. Kesimpulan umum yang ditarik memperlihatkan, penyelesaian perselisihan menyangkut masalah dekolonisasi melalui Konferensi Meja Bundar (KMB) telah mengondisikan inkorporasi HAM ke dalam KRIS 1949. Sudah tertampak bahwa dari klausul yang digariskan Perjanjian Linggarjati maupun Statuta Uni Indonesia-Belanda, KRIS 1949 mutatis mutandis dikondisikan untuk mengadopsi jaminan konstitusional HAM. Keterlibatan PBB pun di samping itu secara tidak langsung membuat inkorporasi HAM semakin dimungkinkan, sebagaimana PBB memang didirikan dengan salah satu tujuan utamanya guna memajukan penghormatan HAM.This article discusses how the incorporation of human rights provisionsin the 1949 Federal Constitution of Indonesia has been influenced by thepolitical constellation marked by the involvement of the Netherlands andthe United Nations (UN) as external actors. The study in this article isconsidered a socio-legal study in line with its interdisciplinary character,which could be specified as legal history research. The general conclusiondrawn shows that the settlement of disputes regarding the issue ofdecolonization through the Round Table Conference has conditionedthe incorporation of human rights into the 1949 Federal Constitution.It appears that from the clauses outlined in the Linggarjati Agreementand the Statute of the Netherlands-Indonesia Union, the 1949 FederalConstitution mutatis mutandis was conditioned to adopt constitutionalguarantees of human rights. In addition, the involvement of the UNindirectly makes the incorporation of human rights possible, as theUN was established with one of its main objectives to promote respectfor human rights
The Overlapping Consensus in the Indonesian Constitution and Its Challenges: Konsensus Berkeadilan dalam Konstitusi Indonesia dan Tantangan-tantangannya
Full text linkPancasila and UUD 1945 form the foundation of Indonesia\u27s social unity. This article analyzes whether Pancasila and UUD 1945 align with John Rawls\u27 criteria of overlapping consensus. The article concludes that the agreement among Indonesia\u27s founding fathers fulfills the requirements of an "overlapping consensus." This consensus encompasses principles of justice that remain independent of any comprehensive doctrine, ensuring the protection of citizens\u27 fundamental rights and the most disadvantaged groups. Despite its imperfections, this consensus significantly contributes to Indonesian social unity. Nevertheless, the reality is marked by challenges and threats that require resolution. Some groups seek to dominate others, and specific rules deviate from the principles of justice. The state and society\u27s commitment to uphold the overlapping consensus is crucial. Among the institutions entrusted with maintaining this consensus is the Constitutional Court
Authority Dispute Between State Institutions Whose Authorities from Regulations Below the 1945 Constitution: Sengketa Kewenangan Antarlembaga Negara yang Kewenangannya didasari Peraturan Perundang-undangan di bawah Undang-Undang Dasar 1945
Full text linkThe dispute over authority between state institutions whose authorities are based on regulations under the 1945 Constitution cannot be resolved through a decision (beschikking), considering that matters involving overlapping authority that has been included in the regulations (regelling) and will remain in effect unless one of the matters has been annulled. This research aims to elaborate the pattern of power restriction on state institutions and find out the resolution of authority disputes between state institutions whose authority is based on regulations under the 1945 Constitution. This research is a legal argumentation using a normative research approach. The results of the research show that each state institution obtains authority by attribution, which originates from the 1945 Constitution or from regulations under the 1945 Constitution. The annulment of material containing authority that is sourced from the regulations under the 1945 Constitution can only be carried out through a material test (judicial review) by the judiciary, namely the Supreme Court
Legitimacy of Non-Formal Constitutional Reforms and Restrictions on Constitutionalism: Legitimasi Perubahan Konstitusi Non-formal dan Pembatasannya dalam Paham Konstitusionalisme
Full text linkNon-formal constitutional change through legislative and judicial interpretation raises issues of legitimacy, and restrictions on non-formal changes can be made. This research aims to determine the legitimacy and explore the limitations of non-formal constitutional changes. This research uses normative legal methods with statutory, conceptual and case approaches. The results show that the legitimacy of non-formal constitutional changes is measured based on procedural legitimacy; that is, non-formal changes must be based on authority, and these changes do not affect the meaning of the Constitution as a whole. It is also measured based on substantial legitimacy; namely, non-formal changes to protect human rights. The limitation on changing the non-formal constitution is based on the main substance, which cannot be changed through non-formal changes such as constitutional structure, human rights, restrictions on authority and restrictions based on the moral constitution of the oath of office to implement and enforce the constitution
Implications of Conditional Inconstitutional Decisions in The Constitutional Court Decision: Implikasi Putusan Inkonstitusional Bersyarat dalam Putusan Mahkamah Konstitusi
Full text linkThis research focuses on the decision of Constitutional Court Number 91/PUU-XVIII/2020, which states that Law Number 11 of 2020 concerning Job Creation is unconstitutional because of a formal flaw in its formation. This study aims to answer two questions. First, regarding the development and characteristics of conditional decisions issued by the Constitutional Court. Second, what are the implications of conditional unconstitutional decisions issued by the Constitutional Court in Decision Number 91/PUU-XVIII/2020? The research method used is doctrinal legal research with a secondary database. The research results show; (1) there are two types of conditional decisions at the Constitutional Court: conditional constitutional decisions and conditional unconstitutional decisions. (2) Decision Number 91/PUU-XVIII/2020 can potentially cause an ambiguous interpretation regarding conditional unconstitutionality because the Constitutional Court, in its a quo decision, stated that Law Number 11 of 2020 concerning Job Creation remains valid. When referring to the conditional unconstitutional meaning generally understood, the law should be unconstitutional until the amendments are completed