Jurnal Konstitusi
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The Relationship between DKPP and PTUN Decisions regarding Ethical Violation by General Election Administrators
Get PDFThe commissioner of the general election administration was discharged through the decision of the General Election Administrator Honorary Council (DKPP). The decision is not final and binding at the executive branch, considering that the decision can be cancelled by the Administrative Court. This study aims to define the authority of DKPP and PTUN in resolving ethical violations committed by election administrators and parse the implications and relationships of the decisions of the two institutions. This paper also proposes an ideal concept for the design of solving ethical violations of election administrators in the future. This study uses normative juridical methods. The results showed that the DKPP and PTUN have overlapping authority but with different decisions. DKPP purely adjudicates ethical issues, and the Administrative Court adjudicates the Presidential Decree, which is a follow-up to the DKPP decision. To avoid conflicting decisions on cases that intersect, violations of the code of ethics in the future must be resolved with a settlement mechanism by the judiciary
Isu Hak Konstitusional Masyarakat Desa Terhadap Kewenangan Pengawasan Pemilihan Kepala Desa
Get PDFThe election of village heads (Pilkades) is the representation of democracy at the village level. Nevertheless, the supervision mechanism by the district/city level election committee (PPK) becomes problematic when the authority also coincides with the authority to operate. It is important to know the legal construction regarding the supervision of village head elections and the model of village head election supervision in the future. These will be analyzed normatively using a statutory approach, case approach, and concept approach. The results of this study show that Pilkades is an important process to actualize the Constitutional rights of communities, democracy and village autonomy. However, the regulations governing the pilkades are not in line with democratic values and the principle of free and fair election because of the unification of the authority to operate and supervise simultaneously at the Village Head Election Committee formed by the regional Head. Therefore, improvements to the supervision of the Pilkades in the future can be carried out with three models, namely: involving district/city Bawaslu, forming district/city Pilakdes Supervisors, direct supervision by district/city Bawaslu
Pola Pembuktian dalam Putusan Pengujian Formil Undang-Undang di Mahkamah Konstitusi
Get PDFThis study examines eight decisions related to the judicial review of the legislative process in the Constitutional Court. This research aims to obtain two things, namely, (1) to find out the pattern of evidence in the decision on the judicial review of the legislative process in the Constitutional Court; and (2) to analyze the problematic pattern of evidence in the decision on the judicial review of the legislative process in the Constitutional Court. The method used in this research is juridical-normative, with a statutory, conceptual, and case approach. This research concludes, first, show a pattern of evidence that tends to be focused on proving the arguments put forward by the applicant and the evidence he submits and is characterized by the weakness of the arguments and evidence of the applicant, which in some judges’ decisions tend to be fixated on formal truths. Second, the majority of problematic legal formal testing stems from the weakness of the applicant’s evidence which is inversely proportional to the evidence submitted by the relevant parties, in this case, the DPR or the applicant who comes from a political party that has a vote base in parliament. There are other problems, namely (1) the tendency of judges to seek formal, not material truth; (2) there is room for ambiguity in the size of the violation of the procedure for the formation of law; (3) there is a paradigm that formal testing is excluded from material testing; and (4) considering the consequences of the decision
Menggagas Judicial Activism dalam Putusan Presidential Threshold di Mahkamah Konstitusi
Get PDFThis study aims to explain the application of judicial activism carried out by the Constitutional Court and the reasons for the need for the Constitutional Court to apply judicial activism in the presidential threshold decision through normative juridical research by explaining interrelated principles. The study results show that the Constitutional Court often uses judicial activism as in the Decisions of the Constitutional Court Number 5/PUU-V/2007 and Number 102/PUU-VII/2009. Based on the two decisions, there are at least three considerations of the Constitutional Court in implementing judicial activism that has been fulfilled in cases of presidential threshold, namely, 1) political discrimination, 2) violations of constitutional rights, and 3) a socio-political emergency occurs. Therefore, the Constitutional Court has a basis for testing the threshold that violates morality, rationality, and intolerable injustice. Thus, the Constitutional Court should use judicial activism to give appreciation for substantial justice to revive the value of expediency and justice in society
Pembaharuan Sistem Hukum Nasional Terkait Pengesahan Perjanjian Internasional dalam Perlindungan Hak Konstitusional
Get PDFIn making international agreements, the political influence of the presidential authority dominates over the authority the House of Representative. Ideally, the President and the DPR should be able to provide cumulative interpretations for the primat national law and international law on an international treaty. In the judicial review case, the Constitutional Court stated that Article 10 of the International Treaty Law was declared conditionally unconstitutional as long as only certain types of international agreements had to be approved by the DPR with a law. This paper wants to discuss the implications of the Constitutional Courts decision and the mechanism for making and ratification of International Agreement. The research method used is juridical normative with regulation and decision approaches. The result of study show thatapproval from DPR is a form of representation of the people which is a manifestation of the implementation of the principle of democracy. The Proposed Amendment to Law Number 24 of 2000 concerning International Treaties has been included in the National Legislation Program with the aim of perfecting the Law on International Treaties and harmonizing it with other laws and Contitutional Court’s decisions. So, the proposed Amendment, the mechanism for making and ratifying international agreements will increasingly prioritize National Interests and not harm the regions.
Pemetaan Pola Permohonan dan Putusan dalam Pengujian Undang-Undang dengan Substansi Hukum Islam
Get PDFThe existence of Islamic law substance in national law, specifically in an Act, has been indirectly placed the Constitutional Court in the position that also has a role in determining the development of Islamic law in the national law system. It can be seen in the context of judicial review of Act that has Islamic law substance or that explicitly regulates Islamic law. This research specifically answers: (a) how is the justification of the inclusion of Islamic law in Indonesian national law? (b) how are the pattern of judicial review petitions and court decisions of Acts related to Islamic law? This research is normative-juridical research, which analyses secondary data such as laws and regulations, Constitutional Court decisions, and articles related to the inclusion of Islamic law in the national law. The results show that the justification of the accommodation of Islamic law in the national law system is related to the construction of state and religion relationship. It indicates that Indonesia is not a religious state, but it is a state that has a divine principle. Furthermore, based on the analysis of judicial review decisions from 2003 to 2019, the pattern of petitions and court decisions of judicial reviews of laws related to Islamic law substance shows at least three main petitions, namely: (a) questioning state intervention in the implementation of Islamic law; (b) questioning the administration of the implementation of Islamic law; (c) petitions for the inclusion of Islamic law in the positive law
Urgensi Penemuan Hukum dan Penggunaan Yurisprudensi dalam Kewenangan Mahkamah Konstitusi
Get PDFIndonesia is a democratic state based on law (constitutional democratic state), with understanding that Constitution has a position as the supreme law, because the whole administration of the state should be based on the Constitution. The Constitutional Court was present as the guardian of the constitution to realize realization of ideals of Indonesia as a democratic state based on law. The research entitled Rechtsvinding and Jurisprudence Used by the Constitutional Court examines the importance of rechtsvinding and the attachment of using jurisprudence in deciding cases according to the authority possessed by the Constitutional Court. This research uses the Socio Legal method, which is a research method that examines a problem through normative analysis, then uses a non-legal science approach that develops in society. The results of the research that has been done are; 1) penemuan law by the Constitutional Court interpreted as an effort to how the Constitutional Court interpreting the Constitution (1945), testing the laws against the 1945 Constitution, to decide the other cases the authority granted by the 1945 Constitution, 2) The Constitutional Court there is no obligation to be bound and is not there is a prohibition to use the jurisprudence of the Supreme Court and other courts under its environment as well as the jurisprudence of the Constitutional Court itself
Konsep Fairness John Rawls, Kritik dan Relevansinya
Get PDFJustice is very fundamental in a pluralistic society. Rawls\u27s view of justice, which is understood as fairness, tries to offer how we organize a pluralistic society fairly. This view is crucial to be considered. The concept of fairness is understood as the ability to act that is acceptable and supported reciprocally. In Rawls\u27s view, the existence of mutual acceptance and support from free and equal citizens without intimidation and pressure signifies that the agreement is fair. He called this kind of attitude reasonableness. In a just society, people must be able to act reasonably. With this capacity, they will agree on the principles of justice, which will be the basis of their social unity. The concept of fairness is essential for a pluralistic society like Indonesia. If we fail to bring justice in a pluralistic society, then our unity as a society will be under serious threat
The Legitimacy Death Penalty Application of Certain Conditions in the Anti-Corruption Law
Get PDFThis article discusses the imposition of the death penalty as stipulated in article 2 paragraph (2) of the Corruption Eradication Law for perpetrators of criminal acts of corruption that are deemed to be detrimental to the State and can have a wide impact on the lives of many people. In this case, there are many pros and cons related to the imposition of the death penalty as stipulated in article 2 paragraph (2) of the Corruption Eradication Law, especially in the sentence “Certain conditions” in that article which are related to the corruption of social assistance funds for handling Covid-19. Apart from that, this article is also considered to be against the Government’s obligations in the effort to respect, protect and fulfill human rights. This article concludes that this article cannot fulfill the juridical aspect of prosecuting corruption actors because it is not included in the requirements of “certain conditions” and is also considered unconstitutional because it is not in accordance with the constitution, which provides protection for a person’s right to life. The imposition of the death penalty has also been proven to be inappropriately used in eradicating corruption, as seen in the 2019 Corruption Perception Index
Relevansi Teori Oplossing dalam Penanganan Sengketa Terkait Keputusan Pengadaan Barang dan Jasa Pemerintah
Get PDFThe Indonesian State Administrative Court has applied the oplossing theory, where claims related to disputes over the procurement of government goods or services are considered to be merged in the civil realm so that they are assumed to be not authorized to handle the dispute. This research is normative juridical research by comparing the practice of handling cases of government procurement of goods and services in the Indonesian State Administrative Court, the Constitutional Court, and the French Administrative Court. Research shows that there are inconsistencies in the Indonesian state administrative court regarding the interpretation of the oplossing theory after the enactment of Law Number 30 of 2014 concerning Government Administration, while in France, the plaintiff can file a lawsuit in the form of annulment of administrative decisions related to the procurement of government goods and services or a compensation claim. The implication of eliminating the oplossing theory is that a third party can file a claim for compensation against a dispute over the procurement of government goods and services in the state administrative court in accordance with the Constitutional Court Decision Number 22/PUU-XVI/2018 regarding the grace period for filing a lawsuit by a third party