Jurnal Konstitusi
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The Use of Progressive Law Phrase in Constitutional Court Decisions: Context, Meaning, and Implication: Penggunaan Frasa Hukum Progresif dalam Putusan Mahkamah Konstitusi: Konteks, Makna, dan Implikasi
Full text linkAs an influential legal idea, Satjipto Rahardjo’s progressive law has colored various legal discourses and practices in Indonesia. Court decisions, as legal texts that record and summarize the trial process, also show that litigants, experts, and court judges often use this legal idea. This research will examine how progressive legal phrases are used in court decisions and whether the users have considered their underlying assumptions, pillars, or principles. This research is limited to Constitutional Court decisions in law review cases. The use of progressive legal phrases is generally accompanied by several progressive legal assumptions proposed by Satjipto Rahardjo. However, these are selected and used partially according to the needs and interests of their users, and thus can have bias implications when compared and examined comprehensively based on other assumptions or pillars
Measuring Accountability for Filling the Acting Regional Heads in Indonesia: Menakar Akuntabilitas Pengisian Penjabat Kepala Daerah di Indonesia
Full text linkBefore the regional head elections, the Minister of Home Affairs(Mendagri) appoints acting regional heads, sparking discussionsabout accountability. This study aims to analyze the development ofregulations for appointing acting regional heads and their implicationsfor accountability. The research, conducted as normative juridicalresearch using secondary data, reveals two key findings. Firstly, thereare three distinct aspects differing in the process of appointing actingregional heads: the reasons for filling the position, the criteria forbecoming acting, and the extended term of the acting position withoutaccountability. Secondly, the lack of accountability in the appointmentprocess has implications, including the potential for acting regionalheads lacking understanding of the region, the presence of actingregional heads driven by political interests, their limited experienceand increased vulnerability to political influence, and the risk ofunsustainable programs initiated by the previous regional head
The Idea of Structuring National Legislation Based on The Ratio of Decidendi & Obiter Dictum Constitutional Court Decision: Gagasan Penataan Legislasi Nasional Berbasis Ratio Decidendi dan Obiter Dictum Putusan Mahkamah Konstitusi
Full text linkMK decission which are "rejecting" and "unacceptable", often contain a constructive “ratio decidendi/obiter dictum” to the formation of the UU, but has not been effectively acted upon in the Prolegnas. This study analyzes: (1) the urgency of national legislation arrangements based on the ratio decidendi/obiter dictum; (2) the formulation of national legislation arrangements based on the ratio decidendi/obiter dictum. This normative research concludes: (1) UU must be formed based on the constitution, but the constitutional messages/guidelines in the MK’s legal considerations-that impactful on the substance of the UU are not followed up. (2) revise Article 18 of the Law No.12 of 2011 as ammanded through the Law No.13 of 2022 on the Establishment of Law and Regulation; give priority weight-to the law affected by the MK decision and include in the Prolegnas priority; the substance of the MK decision must be followed up in the drafting; and institute constitutional dialogue
Strengthen Constitutional Court’s Decision as Political Legal Perspective in Legislative Branch : Penguatan Putusan Mahkamah Konstitusi sebagai Politik Hukum Legislatif
Full text linkThe disobedience of the Constitutional Court’s decisions is founded in the law-making processes that contradict the decision. Those disobediences have been intentional in some cases. This paper aims to discuss reinforcing the implementation of the Constitutional Court decision, especially in law-making processes. There are two research questions: First, what is the urgency to emphasize the decision in law-making processes? Second, what is the solution to the disobedience of the decision? This research uses normative juridical research methods with a conceptual approach to analyze those issues. This study provides: first, the obstacles to enforcing the Constitutional Court decision and strengthens the decision to bond the legislative branch. Second, the solution to the disobedience phenomenon is also interpreted as a commitment to encourage awareness of the legislative branch. The other solution is to put the constitutional court’s decision in the Law Making Act as one of the considerations in the law-making process
Aktualisasi Checks And Balances Lembaga Negara: Antara Majelis Permusyawaratan Rakyat dan Mahkamah Konstitusi
Full text linkThe 1945 Constitution as the constitution of the Indonesian state which adopts a distribution of power system accompanied by a mechanism of checks and balances between state institutions based on popular sovereignty. In this case, as the People\u27s Consultative Assembly and the Constitutional Court which have the authority related to the 1945 Constitution directly. Then it contains the research distinction that is the actual inherence of the authority of the People\u27s Consultative Assembly and the Constitutional Court institutions as the guardians of the constitution through a technical review of checks and balances. Therefore, to scientifically strengthen this legal research, a juridical-normative, philosophical and conceptual-critical approach is used. On that basis, it is considered that between the People\u27s Consultative Assembly and the Constitutional Court have actual significance of the checks and balances mechanism on their institutional authority as the guardian of the constitution. Therefore, it has implications for strengthening the institutional authority of the said state institution and realizing the order of legal civilization and democracy in the 1945 Constitution as the state constitution which is the central point of the administration of the Indonesian state as a democratic law state
Metode Tafsir Putusan Mahkamah Konstitusi dalam Pengujian Konstitusional Undang-Undang Cipta Kerja
Full text linkThe use of the constitutional interpretation method by the judges of the Indonesian Constitutional Court (MK-RI) in their decision’s consideration (ratio decidendi) determine the decisions quality, therefore it must be chosen appropriately. In the context of Indonesian rule of law, the use of constitutional interpretation method should be implemented holistically, integrative, and using a dynamic approach, that must be harmonized with the Pancasila. This article is aimed to explain and analyze the use of constitutional interpretation method in the Constitutional Court Decision Number 91/PUU-XVIII/2020 regarding the Formal Constitutional Review of Law Number 11 of 2020 concerning Job Creation, as well as its theoretical implications. This article also proposes a new approach for constitutional interpretation method which is expected to strengthen the normative legitimacy and justification of the MK-RI decisions in the future. The method of analyses used in this article is the legal normative analyses with a conceptual approach. Finally, this article concludes that the method of constitutional interpretation in the Constitutional Court Decision Number 91/PUU-XVIII/2020 is considered as eclecticism. Using the new approach, the decision has also fulfilled the principles of holistic, integrative and dynamic constitutional interpretation based on Pancasila. For this reason, the Constitutional Court Decision Number 91/PUU-XVIII/2020 deserves to be used as one of the Landmark Decisions at the Indonesian Constitutional Court. However, the eclecticism approach wich is used by Indonesian Constitutional Court to interpret the constitution still needs to be developed in order to increase the normative of legitimacy and justification of decisions quality. In addition, that approach must also be linked to Pancasila both as a rechtsidee and staatsfundamentalnorm of the Indonesian state
The Proposal of Constitutional Complaint for the Indonesian Constitutional Court
Full text linkThe research focuses on the proposal of a Constitutional Complaint for the Indonesian Constitutional Court. The background causes of the constitutional weakness to protection and fulfilment of constitutional rights, especially the absence of a Constitutional Complaint mechanism. Research methods used normative legal research methods with statutory, analytical, and case approaches. The study results show that legal thinking, including an embodiment of the values of constitutionalism in the rule of law of Pancasila, complements a checks and balances system, the basis for protecting fundamental rights, and aims to realize good governance. There are several steps/ methods to giving this authority, amendments to the 1945 Constitution, non-original interpretations, and revision of the Constitutional Court Act. Several objects of dispute are the Court’s verdict, the problems of interpreting the 1945 Constitution and law by a state official, People Consultative Assembly decisions, and others
Konsistensi Pembuatan Norma Hukum dengan Doktrin Judicial Activism dalam Putusan Judicial Review
Full text linkThis study intends to explain the consistency of the Constitutional Court (MK) in making new legal norms by using the doctrine of judicial activism and to explain the factors that underlie the consistency of the Constitutional Court in making new legal norms through normative juridical research by explaining the principles, principles, and analysis of interrelated decisions. This study concludes that the Constitutional Court is inconsistent because it only grants and makes new legal norms in the Constitutional Court Decision Number 5/PUU-V/2007. Meanwhile, in the Constitutional Court\u27s Decision Number 53/PUU-XV/2017, the Constitutional Court refused to make a new norm even though the two cases created discrimination and limited public participation in politics. The inconsistency factors include: 1) jurisprudence factors, 2) the application cannot convince the majority of the judges of the Constitutional Court, and 3) the paradigm factor of judges
Menakar Konstitusionalitas Penundaan dan/atau Pemotongan Anggaran Transfer ke Daerah dalam UU APBN
Full text link Provisions regarding delays and/or withholding of transfers to regions by the Government in the APBN Law create problems when they are considered to create legal uncertainty regarding finances, which should be the domain of regional governments. This study aims to analyze: the constitutional urgency of the existence of a transfer budget to the regions from the center and the suitability of the sanctions for delaying and/or cutting budget transfers to the areas in the APBN Law. The study results show that transfers to the regions are a form of constitutional embodiment in the form of handing over financial resources to the areas as an actualization of effective fiscal decentralization. However, in practice, some regions do not comply with budget allocations, so the implications for regional financial management are not on target. On the other hand, the provision of sanctions for delaying and/or withholding funds transfers to the regions is in line with the financial construction of the unitary state with a decentralized system. This has also been strengthened through Constitutional Court Decision No. 5/PUU-XVI/2018
Implementasi dan Akibat Hukum Penerapan Asas Lex Spesialis Derogat Legi Generalis terhadap Keistimewaan Aceh
Full text link The contestation to National Election Act’s implementation or principle of lex specialis derogat legi generalis as rule’s problem reference to regional dispute in Aceh. This research is a normative legal related to Aceh Election and Qanun on Election. The crucial problem with existence of special rules of Aceh’s privilege are not set by threshold conditions. Lex specialis derogate legi generali’s principle cannot be used in election dispute will contradict the 1945 Constitution. The Election Act cannot be ruled as dispute basis to Constitutional Court. The principle can be applied to cases that requirements, so harmonious legal drafting becomes urgency to formalize a special judicial body