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Jurnal Konstitusi
Published by Pusat Penelitian dan Pengkajian Perkara dan Pengelolaan Perpustakaan Mahkamah Konstitusi Republik Indonesia
ISSN : 18297706     EISSN : 25481657     DOI : https://doi.org/10.31078/jk1841
Core Subject : Humanities, Social,
Humanities Law, Crime, Criminology & Criminal Justice
The aims of this journal is to provide a venue for academicians, researchers and practitioners for publishing the original research articles or review articles. The scope of the articles published in this journal deal with a broad range of topics in the fields of Constitutional Law and another section related contemporary issues in law.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 10 Documents
 1 
Search results for , issue "Vol 12, No 1 (2015)" : 10 Documents clear
The Right of Self-Determination: Its Emergence, Development, and Controversy Manan, Munafrizal
Jurnal Konstitusi Vol 12, No 1 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (1178.081 KB) | DOI: 10.31078/jk1211

Abstract

This paper discusses the right of self-determinationfrom  international  law  and international human rights law perspective. It traces the emergence and development of self-determination from political principle to human right. It also explores the controversy of the right of self-determination. There have been different and even contradictory interpretations of the right of self-determination. Besides, there is no consensus on the mechanism to apply the right of self-determination. Both international law and international human rights law are vague about this.
Kewenangan Mahkamah Konstitusi Memutus Perselisihan Hasil Pemilu Sebagai Bentuk Judicialization 0f Politics Satrio, Abdurrachman
Jurnal Konstitusi Vol 12, No 1 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (1350.274 KB) | DOI: 10.31078/jk1217

Abstract

Judicialization of politics are the phenomenon which usually happen in a democratic constitutional state, which cause power movement to resolve problems which related to public policy making and political nature, from the political institution to judicial institution. In Indonesia this phenomenon arise in the authority of the Constitutional Court, especially in the authority of the Constitutional Court when they adjudicate electoral result dispute, whichs so far, most widely submitted cases to the Constitutional Court. But, as a independent and impartial judicial institution the Constitutional Court must restrict to adjudicate the political cases such as electoral result dispute so that this institution would not be politicking object of another branch of government, however judicialization of politics phenomenon is something that Constitutional Court would not avoid, so that this article will examine how important the Constitutional Court to priority judicial restraint principle in order to adjudicate electoral result dispute, so that Constitutional Court would not be politicking object of another branch of government.
Mahkamah Konstitusi dan Pseudo Judicial Review dalam Perkara Pemilukada Nur Rachman, Irfan
Jurnal Konstitusi Vol 12, No 1 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (1124.158 KB) | DOI: 10.31078/jk1219

Abstract

Judicial review is the test act against UUD 1945 that is one authority the constitutional court. In testing legislation affairs, the constitutional court could have cancel or material handling charge article / ayat / part of a statute.  But in the legal developments event at the constitutional court, turned in regional head affair how the constitutional court to review (pseudo judicial testing legislation specious) where the constitutional court to do our tests material charge / article ayat / or part of a statute. The research results show that on formil, judicial review the request in the matter of the act of testing and supplication pseudo judicial review in the matter of the results   of the upcoming general election strife is different because be set by two types of laws the event under the authority of the different. However, in the context of judicial review of the verdict, construction and construction of pseudo judicial review similarities and differences will be discussed in the article below.
Pengadilan Sebagai Lembaga Penegakan Hukum (Perspektif Civil Law dan Common Law) Triningsih, Anna
Jurnal Konstitusi Vol 12, No 1 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (1374.68 KB) | DOI: 10.31078/jk1218

Abstract

Law, as an justice institution run its functions through a specific process towards a certain direction in order to achieve justice. Justice now a days is needed as something concrete as the fulfillment of the most basic needs of the community. Law enforcement, in parliamentary life is run by the Government (the executive organs) and through the courts (judicial organ).There are different approaches in law enforcement. The rule of law in the Civil Law System which is shared by the countries in the European continent or land use law, also known as legal approach. In the Common Law System which is shared by the United Kingdom and the United Kingdom speaking countries, using the administration approach of the Administration, called the administration of justice. Implementation of the fundamental principles of the law, or because of its emphasis on the steps of a procedure in the event properly can make the law as an unrealistic myth, inefficient and far from the purpose of    the law and implies the occurrence of loss of trust from the community, while the basic principles of administration, because of its emphasis on the achievement of business objectives efficiently will have implications for the lack of certainty in law enforcement that is essential for the achievement of Justice for everyone. Besides that addition, it also can be an opportunity for the Court arbitrariness because discretion has its wide open room. Every Legal Approach has its own advantages and disadvantages. Making option to choose which legal approach as an appropriate and good policy in law enforcement is related to the characteristics and level of knowledge of the community also the environment where these law applied.
Konstitusionalitas dan Legalitas Norma dalam Pengujian Undang-Undang Terhadap Undang-Undang Dasar 1945 Ali, Mohammad Mahrus
Jurnal Konstitusi Vol 12, No 1 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (416.319 KB) | DOI: 10.31078/jk12110

Abstract

The Constitutionality of norms are inseparable with the model of judicial review of laws against the 1945 Constitution of the Republic of Indonesia. It can be see  from the reviews of abstract and concrete norms by the Constitutional Court of the Republic of Indonesia. The review of conrete norms in the decision of judicial review basically does not constitute authority of the Constitutional Court. Theoretically, norms review should be starting from abstract norms as the implications of the Constitutional Court authority. In order to review the constitutionality of laws, norms and abstract norms should be interpreted by the Constitutional Court. While concrete norms focuse more on the implementation or application of the norm itself. The application of norms cannot be separated from the legality of the norms, while constitutionality of norms is related to its coherence with with the Constitution. If the basis of norms review is the 1945 Constitution of the Republic of Indonesia then abstract norms  should be the main subject matter to be reviewed. Otherwise, when concrete norms are the subject matters to be reviewed, then the implementation    of the norms that have been applied in concrete cases. This research is using normative juridical method with case approach in which 15 (fifteen) verdicts of the Constitutional Court of Republic of Indonesia over the period of 2003-2013 in judicial review of laws against the 1945 Constitution are analyzed. The focus is on the ratio decidendi of the Constitutional Court judges in determining the constitutionality     of norms. The result of this research shows that, the Constitutional Court, in the judicial review of laws against the 1945 Constitution of the Republic of Indonesia does not separate abstract norms and concrete norms dichotomously. In an attempt to protect the constitutional rights of citizens, the absence of legal remedies that can be further pursued by the  applicant,  as  well  as  to  provide  legal  certainty, the Constitutional Court, granted, in its decision,  the review of concrete norms.  Even though the Constitutional Court remains firm in satting that it is a concrete norms,  the applicant’s petition is granted in part which is concerning the review  the abstract norms only. Whereas, with respect to the verdict of the constitutional court that rejected the review of concrete norms, it is because the review is not on the constitutionality of norms but the application of the norms and also concerns     a petition for an interlocutory decision which is irrelevant to the subject matter of the case. The review of concrete norms in a rejecting ruling is a form of prudence   by the Constitutional Court in order not to prosecute the matters which constitute the authority the other judicial bodies, namely the Supreme Court and the lower courts. As for the ruling which declared a petition inadmissible, the Constitutional Court stated that the applicant has no legal standing and the Constitutional Court does not have the authority to test these norms. In the future the Constitutional Court needs to affirm the status of norms before further examining in depth the petition filed. In addition, the Constitutional Court should be conferred with the authority to hear constitutional complaint and constitutional question in order to create the harmonization of interpretation based on the Constitution.
Eksekusi Barang Rampasan Hasil Tindak Pidana Kehutanan Pasca Putusan Mahkamah Konstitusi Nomor 021/PUU-III/2005 Rifai, Eddy; Triyono, Rakhmat
Jurnal Konstitusi Vol 12, No 1 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (869.895 KB) | DOI: 10.31078/jk1213

Abstract

This study examines the execution of the judgment against the spoils of crime  in forestry. Research using normative juridical approach and empirical jurisdiction. Execution of judgments against the state spoils of criminal offenses in the field of forestry, the injunction decision declared goods confiscated for the state not to do execution the form of an auction, because of legislation prohibiting the sale of forest products obtained from crime in protected forests. Perspective execution of court decisions to loot the proceeds of crime in the field of forestry is to judge using breakthrough progressive law, the court ruled that the injunction which reads "Evidence confiscated to the state and used for social purposes".
Mahkamah Konstitusi dan Hak Untuk Bebas Dari Perlakuan Diskriminasi Kurnia, Titon Slamet
Jurnal Konstitusi Vol 12, No 1 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (1615.644 KB) | DOI: 10.31078/jk1212

Abstract

Judicial interpretation of the right to be free from discrimination is a central issue in the practice of judicial review of the constitutionality of legislation by the MKRI. This article tries to describe and systematize this practice and then to restate the legal principles as it is stated by the MKRI into its case law. This article finds that, as a matter of principle, the MKRI adopts two main tests i.e. strict scrutiny and rational basis test to determine whether a legislation is contrary to the principle    of non-discrimination
Nasab Anak Luar Kawin Pasca Putusan Mahkamah Konstitusi Nomor 46/PUU-VIII/2010 Hamzani, Achmad Irwan
Jurnal Konstitusi Vol 12, No 1 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (1118.594 KB) | DOI: 10.31078/jk1214

Abstract

Constitutional Court Decision No. 46/PUU-VIII/2010 granted the petition Machica Mochtar, who is married with Moerdiono the Islamic religion in accordance, but not recorded. If the marriage was born a boy named Mohammed Iqbal Ramadan. After the decision of the Court, the status of illegitimate children has a civil relationship with his father and his father’s family. Child outside  marriage  include  children born of the marriage legitimate religion, but not recorded, and the children born from adultery. According to Islamic law, the Constitutional Court’s decision is appropriate when applied to the child of a valid marriage according to religious but not registered. Meanwhile, when applied to children outside marriage, adultery result, the Court’s decision is contrary to Islamic law.
Implementasi Kewenangan DKPP Pasca Putusan Mahkamah Konstitusi Nomor 115/PHPU.D-XI/2013 Darwis, Muh. Salman
Jurnal Konstitusi Vol 12, No 1 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (1304.327 KB) | DOI: 10.31078/jk1215

Abstract

The existence of DKPP as one of the administration institutions of elections, causing a variety of problems in the implementation of its authority. This is due to the absence of a sufficiently clear parameters or benchmarks used by DKPP in dealing with the violations of code of conducting for the election. Finally, using the argument of the restorative justice, DKPP takes care ofthe implementation of the election by assigning the couplecandidate of participants forthe election and solves the disputes of determination of couple candidate for the election. The decison of Constitutional Court No. 115/PHPU.D-XI/2013,warns the DKPP to be consisten,adjudicating, and determine the violations of code of conduct in theimplementation of the election. Besides, decisions of DKPP shouldcharacteristically be recommendation and not be final and binding because it inflicts psychological effects forboard of KPU as well as bawaslu that is thefear of dismissal sanction or temporary dismissal and potentially incurring prolongedlaw polemic.
Legal Reasoning Pada Perkara Pengujian Undang-Undang (Studi Perbandingan) Hardjaloka, Loura
Jurnal Konstitusi Vol 12, No 1 (2015)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (1277.696 KB) | DOI: 10.31078/jk1216

Abstract

Article 24 C of Third Amendment of Constitution Law 1945 is the basis of the Constitutional Court to give the final and binding decision in terms of law examination against Constitution Law 1945. Constitutional Court has a restriction to not examine the nebis in idem case unless there is a different substance of Constitutional Law 1945 which is used as the based of examination. In this paper, there are 12 (twelve) Constitutional Court’s decisions on law re-examination against the Constitutional Law 1945 because using different substance of Constitutional Law 1945 as the based of examination. Based on the research, which has been conducted, there are legal reasoning differences in accepting and deciding the cases which have been decided previously which the Court  uses  different  legal  interpretation  and  construction in deciding the case. Thus, this paper will examine and compare legal reasoning methods which are used in deciding the case.

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