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Proportionality Test in the 1945 Constitution: Limiting Hizbut Tahrir Freedom of Assembly Taufik, Giri Ahmad
Constitutional Review Vol 4, No 1 (2018)
Publisher : The Constitutional Court of the Republic of Indonesia

In May 2017, Jokowiâs administration announced the intention to dissolve Hizbut Tahrir Indonesia (HTI). HTI is an Islamic organization that aspires to establish caliphate government based on the claim of Islamic teaching. The Government considers HTI as a threat to Pancasila. The announcement has created controversy. It has divided Indonesian into pro and contra camp. The dissolution pro camp argues HTI ideology is against Pancasila, Indonesia political ideology. Furthermore, they pointed out HTIâs idea of Caliphate that based on religion would disintegrate the nation. Conversely, the cons argues the government move is against the constitutionally guarantee freedom of association as stipulates in the 1945 Constitution of the Republic of Indonesia (hereafter the 1945 Constitution). The move would create precedent that threatens freedom of assembly if the government failed to enact due process procedure and provide justifiable reason for the action. This controversy is not new to human rights and democratic discourse. Karl Popper describes the debate as a paradox of tolerance, democracy, and freedom in an open society. This paper examines how the 1945 Constitution can be utilized to resolve the paradox. This paper argues that Article 28 J par.2 of the 1945 Constitution requires the balance between human rights protection and limitation in its proportion. Thus, the limitation clause should be used as a parameter to solve HTI issue. This paper explores the use of proportionality test in interpreting the limitation clause and applies it not only to the question of HTI issue but also broader issues to evaluate recent government moves in amending the Law Number 17 Year 2013 on Societal Organisation. This paper employs a doctrinal method in its analysis.

Tafsir MK Atas Pasal 33 UUD 1945: Studi Atas Putusan MK Mengenai Judicial Review Terhadap UU No. 7/2004, UU No. 22/2001, dan UU No. 20/2002 Magnar, Kuntana; Junaenah, Inna; Taufik, Giri Ahmad
Jurnal Konstitusi Vol 7, No 1 (2010)
Publisher : Mahkamah Konstitusi Republik Indonesia

The rulings of the constitutional court to review the Act No. 7 of 2004 on Management of Water Resources, Act No. 22 of 2001 on Crude Oil and Natural Gas, Act No. 20 of 2002 on Electricity caused controversy. These decisions gives a different interpretation of Article 33 of the Constitution of 1945, which likely have implications for Indonesia’s economic development policy. Branches of production which is important for the livelihoods of people and natural resources, is placed in the area of public law rather than private. The consequences are arranged by state control rights as a collective representation of Indonesian society. Thus, the form that allows management of a joint is through cooperatives and the state delegation of the management of public goods to the non-state (cooperative), can only be done with the instrument of one-sided legal action.

Tafsir MK Atas Pasal 33 UUD 1945: Studi Atas Putusan MK Mengenai Judicial Review Terhadap UU No. 7/2004, UU No. 22/2001, dan UU No. 20/2002 Kuntana Magnar; Inna Junaenah; Giri Ahmad Taufik
Jurnal Konstitusi Vol 7, No 1 (2010)
Publisher : The Constitutional Court of the Republic of Indonesia

The rulings of the constitutional court to review the Act No. 7 of 2004 on Management of Water Resources, Act No. 22 of 2001 on Crude Oil and Natural Gas, Act No. 20 of 2002 on Electricity caused controversy. These decisions gives a different interpretation of Article 33 of the Constitution of 1945, which likely have implications for Indonesia’s economic development policy. Branches of production which is important for the livelihoods of people and natural resources, is placed in the area of public law rather than private. The consequences are arranged by state control rights as a collective representation of Indonesian society. Thus, the form that allows management of a joint is through cooperatives and the state delegation of the management of public goods to the non-state (cooperative), can only be done with the instrument of one-sided legal action.

Tafsir MK Atas Pasal 33 UUD 1945: Studi Atas Putusan MK Mengenai Judicial Review Terhadap UU No. 7/2004, UU No. 22/2001, dan UU No. 20/2002 Kuntana Magnar; Inna Junaenah; Giri Ahmad Taufik
Jurnal Konstitusi Vol 7, No 1 (2010)
Publisher : The Constitutional Court of the Republic of Indonesia

The rulings of the constitutional court to review the Act No. 7 of 2004 on Management of Water Resources, Act No. 22 of 2001 on Crude Oil and Natural Gas, Act No. 20 of 2002 on Electricity caused controversy. These decisions gives a different interpretation of Article 33 of the Constitution of 1945, which likely have implications for Indonesia’s economic development policy. Branches of production which is important for the livelihoods of people and natural resources, is placed in the area of public law rather than private. The consequences are arranged by state control rights as a collective representation of Indonesian society. Thus, the form that allows management of a joint is through cooperatives and the state delegation of the management of public goods to the non-state (cooperative), can only be done with the instrument of one-sided legal action.

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