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Jurnal Konstitusi

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Published by Mahkamah Konstitusi Republik Indonesia

ISSN : 18297706 EISSN : 25481657 DOI : 10.31078

Core Subject : Education, Social,

Law, Crime, Criminology & Criminal Justice Other

Jurnal Konstitusi merupakan media triwulanan guna penyebarluasan (diseminasi) hasil penelitian atau kajian konseptual tentang konstitusi dan putusan Mahkamah Konstitusi. Jurnal Konstitusi terbit empat nomor dalam setahun (Maret, Juni, September, dan Desember). Jurnal Konstitusi memuat hasil penelitian atau kajian konseptual (hasil pemikiran) tentang konstitusi, putusan Mahkamah Konstitusi serta isu-isu hukum konstitusi dan ketatanegaraan yang belum pernah dipublikasikan di media lain. Jurnal Konstitusi ditujukan untuk kalangan pakar, akademisi, praktisi, penyelenggara negara, LSM, serta pemerhati hukum konstitusi dan ketatanegaraan.

Arjuna Subject : -

Articles 896 Documents

85 86 87 88 89

Independensi Komisi Pemberantasan Korupsi Pasca Undang-Undang Nomor 19 Tahun 2019 Mohammad Mahrus Ali; Zaka Firma Aditya; Abdul Basid Fuadi
Jurnal Konstitusi Vol 18, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Since its establishment, the Corruption Eradication Commission (Komisi Pemberantasan Korupsi-KPK) has been designed as a state independent agency. The purpose of granting independence to the KPK is to guard against influence by any power. The second revision of the KPK Law through Law Number 19 of 2019 contains fundamental changes to the KPK institution, namely: the establishment of the Supervisory Board, the placement of the KPK in the executive branch, employment status, and examiner or investigator status. The revision not only limits the authority of the KPK but also creates an impact on the independence of the KPK. The principles of independence of the KPK, as typical of state independent agencies and anti-corruption agencies have faded through the regulation of Law Number 19 of 2019. The implication is that the KPK has an increasingly limited latitude and is not independent of the influence of other powers, particularly the executive. Without repositioning the KPK institution, the agenda for eradicating corruption will become gradually uncertain. Without restoring its independence, the existence of the KPK is increasingly losing relevance, because the President is actually in the lead of two other corruption eradication law enforcement agencies, namely the police and the prosecutor’s office.

Overruling Mahkamah Konstitusi RI terkait Isu Korupsi Zaka Firma Aditya
Jurnal Konstitusi Vol 18, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Overruling is a revision of a court’s previous judicial precedent, meaning the court replaces the precedent with a new rule. This article sees that overruling is legitimate to seek constitutional truth. In practice, the Constitutional Court of the Republic of Indonesia (CCRI) has overruled its own Decisions through judicial review. This article focuses on the CCRI’s overruling on corruption issues which are the status of the Indonesian Corruption Eradication Commission and the meaning of the phrase “may harm State’s financial” which is stated in Law No. 31 of 1999. This article argues that those Decisions are consistent with constitutional truth although the ratio decidendi of the Court of the latter issue is inadequate. A case approach and a conceptual approach are used in the analysis of this legal research.

Prinsip Proporsionalitas dalam Putusan Mahkamah Konstitusi (Studi Perbandingan di Indonesia dan Jerman) Irene Angelita Rugian
Jurnal Konstitusi Vol 18, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

The judicial review of UUD 1945 is the authority of the Constitutional Court declared by Article 24C UUD NRI 1945. One of the reasons for judicial review is competiting rights or the constitutional rights of citizens who have been violated through existing laws, so there needs to be an examination of the law these laws. It is also known that some of the judges’ decisions in competiting rights cases only use the interpretation of the constitution without considering the impairment of rights delivered by the applicant in the examination. Thus resulting in a decision stating that the law does not conflict with the constitution. This hurts citizens who feel their rights have been violated. A balance is needed between the public interest and the constitutional rights of citizens. The counterweight can use the principle of proportionality. The principle of proportionality is needed by the constitutional judge in his consideration when faced with a case of competiting rights. But unfortunately, this principle is not always used when faced with competiting rights, and the principle was not developed by Constitutional Court judges. In this paper the problem to be answered is first the history of the principle of proportionality, secondly the comparison of the use of the principle of proportionality in constitutional justice in Germany and Indonesia. The problem was answered using normative legal research methods. The main material is the decision of the Constitutional Court and supporting materials in the form of books and journals. The conclusion in this paper is the need to use the principle of proportionality in dealing with competiting rights cases in the Constitutional Court. So it is necessary to immediately develop the principle of proportionality and its parameters.

Karakteristik Ne Bis In Idem dan Unsurnya dalam Hukum Acara Mahkamah Konstitusi Ilhamdi Putra; Khairul Fahmi
Jurnal Konstitusi Vol 18, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Ne bis in idem principle in Mahkamah Konstitusi procedural law (Constitutional Court– CC) found in Article 60 Paragraph (1) of CC Act, in prohibition form to return to trial norms previously reviewed. Discrete from Criminal Code and Civil Code which exact ne bis in idem elements, Article 60 Paragraph (1) has sole element within object review form. This research examines two problems: what are ne bis in idem principle characteristics, and what are the elements in the CC procedural law? The normative judicial research method used to understand ne bis in idem principle elative. Ne bis in idem adaptation in CC procedural law resulted broad philosophical shifts that unaffected Petitioners' legal standing and legality of the object that could bring against them. Based on decision systematics, CC put arguments ne bis in idem at Conclusion, so that it is not a verdict. Meanwhile, ne bis in idem principle in CC procedural law carry several norms, however CC Act only has two elements in legal object and legal subject-relationship forms. Meanwhile, the third element in legal development form is found in the CC decision. Because the legal standing of the Petitioners' and the legality of the object that can be challenged was not disturbed, the three elements did not apply accumulatively, in which the element of legal development was more determinant than the other two elements. As result, constitutionality actualization either occurs through positive decisions granted Petitioners' petition, moreover occurred in cases deemed ne bis in idem.

Sinergitas Kabinet Presidensiil Multipartai pada Masa Pandemi Covid-19 di Indonesia Tundjung Herning Sitabuana; Ade Adhari
Jurnal Konstitusi Vol 18, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Implement the simultaneous election in Indonesia has supported by the multiparty system. The multiparty system has an impact on the President’s leadership. In the formation of the cabinet, the President must accommodate political party coalition interest. One form of that accommodations occurs of the minister which came from the coalition political party. Different from the minister's interest background has an impact on the different policies each minister especially on COVID-19 handler in Indonesia. The research method is normative research with a case approach and concept approach. This research used secondary data that used primary, secondary, and tertiary materials. This research shows that the presidential cabinet in Indonesia is a cabinet which forms by multi-party coalitions. On multiparty coalition implementation of Kabinet Indonesia Maju 2019-2024, there were several times, the minister has different policy among the minister or with local governments such as the case of the ban on taking passengers for online biking and prohibition against homecoming. Different policies among the minister or with local government can be minimized by the President’s political leadership.

Justifikasi Pemutusan Hubungan Kerja Karena Efisiensi Masa Pandemi Covid-19 Dan Relevansinya Dengan Putusan Mahkamah Konstitusi Nomor 19/PUU-IX/2011 Dian Agung Wicaksono; Enny Nurbaningsih
Jurnal Konstitusi Vol 18, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

This conceptual article aims to analyze about the justification and legal aspect of employment termination because of efficiency phenomenon in covid-19 pandemic period. Article 164 paragraph 4 Manpower Act and Constitutional Court Decision Number 19/PUU-IX/2011 already stipulated that employment termination because of efficiency must be followed by company closure. But, covid-19 pandemic situation was forcing the employers to do employment termination because of efficiency without a company closure. The conclusion of this article is the employers did the termination without the company closure based on consideration that, it would prevent more damage than did it with the closure. The company closure would bring result all of workers, including the employers, loss their jobs. The employment termination because of efficiency, but without company closure could be preserved the operational of company and maintain the other workers’ jobs. This efficiency reason is not actually prohibited in Article 153 paragraph 1 Manpower Act and in ILO’s Convention and Recommendation 1982. However, this termination could not use Article 164 paragraph 4 Manpower Act and Constitutional Court Decision Number 19/PUU-IX/2011 as the legal basis. The compensation formulation model of the termination could use the formulation of termination without worker’s fault as stipulated by Manpower Act. In addition, the institutions of industrial relaton dispute resolution must supervise the termination process, in order the process would be staged fairly, coincide with the principles of legal termination, and the workers’s compensastion would be fulfilled by the employers.

Prinsip Isonomi di Indonesia: Filosofi, Makna, dan Perbandingan Titon Slamet Kurnia
Jurnal Konstitusi Vol 19, No 2 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

The regulation of the principle of isonomy in Article 28D paragraph (1) of the 1945 Constitution of the Republic of Indonesia and its derivative laws without an explanation of its meaning has implications for misunderstanding what it means. This study seeks answers to the philosophical question and the meaning of the isonomy principle and compares it with the isonomy principle in English law which is based on the rule of law. Using theoretical research, three answers were obtained. The social contract which contains an agreement on the surrender of natural rights to enforce law by individuals to the state and places individuals in the same position and treatment in law enforcement by the state becomes a philosophy of isonomy principles. The principle of isonomy in Indonesia is based on distributive justice where equal treatment before the law means proportionality with regard to people's class, position, achievements, and functions of people in the social order. In English law, the principle of isonomy is based on commutative justice where all people regardless of class, position, social status or function, they are under the same law and justice.

Human Rights and Constitutionality Issues of Blasphemy Law in Indonesia Ismail Hasani; Halili Halili
Jurnal Konstitusi Vol 19, No 2 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

This article analyzes human rights and constitutionality issues in the Indonesian Blasphemy Law. It contributes urgently to constitutional studies since constitutionalism requires respect for human rights and democracy obliges to uphold the supremacy of the constitution. This article was written as the results of research through the desk-study using descriptive-qualitative approach. Data were collected through document study and Internal Focus Group Discussion. Indonesia's blasphemy laws inherently violate human rights and are prone to politicization which places religious minorities in vulnerability, while the main legal provisions that criminalize blasphemy have been tested for their constitutionality dimensions by the Constitutional Court. However, the constitutionality issue remains, partly because the Constitutional Court affirmed a religious constitution whereas the Republic of Indonesia is a Pancasila based state. In addition, the Constitutional Court ignores human rights, particularly the right to freedom of religion/belief as guaranteed by the constitution.

Penataan Pemilihan Kepala Desa dalam Sistem Ketatanegaraan di Indonesia Mohamad Mova Al'afghani; Bisariyadi Bisariyadi
Jurnal Konstitusi Vol 19, No 2 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

The current political and legal configuration of the village head election organizing institution is not yet in accordance with election governance with integrity. This happens because the institutional structure is not well ordered. This research examines the problem of legal regulation of the structure of the village head election institution, and looks for the ideal framework for the organization to organize the village head election in the future. The research method used is normative and doctrinal legal research method which is carried out by analyzing positive legal norms. Data collection techniques are carried out by reviewing applicable laws and regulations, books and other literature. The results showed that the legal arrangements for village head election organizers through related regulations led to many institutional structures for village head elections so that the funding for village head elections would be expensive. The idea of an ideal framework for an organizing institution for village head elections in the future can be done by shifting the model of the village head election organizing institution from a government model to an independent model. The application of this model can be done through a legislative or executive review of regulations related to village head elections, and at least including the KPU as the organizing agency for village head elections.

Format Ideal Tindak Lanjut Putusan Mahkamah Konstitusi untuk Mengefektifkan Asas Erga Omnes Sipghotulloh Mujaddidi
Jurnal Konstitusi Vol 19, No 2 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

This article aims to find the ideal format to implement the Constitutional Court (MK) decision through the principle of erga omnes. The erga omnes aims to guarantee the protection of human rights for all citizens. However, the principle of erga omnes cannot be implemented properly due to the gap between adressat and the verdict issued by the MK. This inconsistency and disobedient will result in decline of the erga omnes. An ideal system is needed to improve the application of the Constitutional Court's decisions in accordance with the principle of erga omnes. The results showed that to maximize the principle of erga omnes requires cooperation between the MK and other state institutions or adressat. This can be combined with the implementation of judicial deferral and the provision of deadlines for the follow-up of decisions imposed on adressat as a representation of determining legal boundaries and certainty.

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Journal Mail Official
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Jl. Medan Merdeka Barat No. 6. Jakarta 10110

Location
Kota adm. jakarta pusat,

Dki jakarta

INDONESIA