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Contact Name
Abdul Basid Fuadi
Contact Email
jurnalkonstitusi@mkri.id
Phone
+6281215312967
Journal Mail Official
jurnalkonstitusi@mkri.id
Editorial Address
Pusat Penelitian dan Pengkajian Perkara dan Pengelolaan Perpustakaan Mahkamah Konstitusi Republik Indonesia Jl. Medan Merdeka Barat No. 6, Jakarta 10110 Telp: (021) 23529000 Fax: (021) 3520177 E-mail: jurnalkonstitusi@mkri.id
Location
Kota adm. jakarta pusat,
Dki jakarta
INDONESIA
Jurnal Konstitusi
ISSN : 18297706     EISSN : 25481657     DOI : https://doi.org/10.31078/jk1841
Core Subject : Humanities, Social,
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
Search results for , issue "Vol 13, No 2 (2016)" : 10 Documents clear
Eksistensi dan Karakteristik Putusan Bersyarat Mahkamah Konstitusi Rahman, Faiz; Wicaksono, Dian Agung
Jurnal Konstitusi Vol 13, No 2 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (482.55 KB) | DOI: 10.31078/jk1326

Abstract

The result of this legal research show the existence of conditionally constitutional and conditionally unconstitutional decision in reviewing laws from 2003 to 2015, although that model of decision is not regulated in the positive law.  There are 5 characteristics of conditionally constitutional decision, those are (1)  Court  gives interpretation or certain requirements in order to remain constitutional provisions tested throughout implemented according to the specified requirements of the Constitutional Court; (2) based on the rejected verdict; (3) a conditionally constitutional clause can be found only on the consideration of the Court, or can be found on the judgment and injunction; (4) conditionally constitutional decision require re-judicial review if the norm is not in line with the interpretation of the Constitutional Court; (5) encouraging legislative review. Regarding the conditionally unconstitutional decision, there are 4 characteristics, those are (1) the verdict certainly include a conditionally unconstitutional clause; (2) a conditionally verdict can be the meaning or interpretation of a norm, or give the terms of the norm is unconstitutional; (3) based on the granted verdict either partially or completely; (4) does not substantially different from the conditionally constitutional clause.
The Role of Indonesian Constitutional Court In Protecting Energy Security Armia, Muhammad Siddiq
Jurnal Konstitusi Vol 13, No 2 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (458.789 KB) | DOI: 10.31078/jk1321

Abstract

After more a decade, Indonesian Constitutional Court (ICC) has importantly played a significant role in the law reform, such  as  protecting  energy  security  through  their judgements. ICC comes out of the box, creating unpredictable judgements, and ensuring the justice values. In protecting energy security ICC makes important breakthrough with reviewing Act Number 22 of 2001 on the Oil and Earth Gas, Act Number 4 of 2009     on the Mineral Mining and Coal, and invaliding Act Number 20 of 2002 on the Electrical Power. Those acts contradict the basic norm in the 1945 Constitution. Although creating public debate, ICC judgment should be   appreciated.
Dimensi Judicial Activism dalam Putusan Mahkamah Konstitusi Faiz, Pan Mohamad
Jurnal Konstitusi Vol 13, No 2 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (474.361 KB) | DOI: 10.31078/jk1328

Abstract

A transformative amendment of the 1945 Constitution established a separate judicial institution called the Constitutional Court. This institution is believed to serve a strategic role within Indonesia’s plural legal  system  particularly  in  the area of constitutional review and constitutional rights protection. However, the performance of the Constitutional Court has attracted controversy. This controversy arises because the Court is concerned with introducing a sociological paradigm of law that embraces substantive justice with a fluid acknowledgment of procedural justice. A key criticism of the Constitutional Court is that the nature of Court decisions has developed into a practice of judicial activism. This article discusses the dimension of judicial activism used by the Constitutional Court on the grounds for protecting constitutional rights of the citizens through its decisions. It also analyses the extent of judicial activism that can be justified in the decision-making process   in the Constitutonal  Court.
Menakar Perlindungan Justice Colaborator Satria, Hariman
Jurnal Konstitusi Vol 13, No 2 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (438.752 KB) | DOI: 10.31078/jk1329

Abstract

Corruption is one form of systematic organized crimes performed with complicated modus operandi. Disclosing of this crime, in addition to requiring special equipment, also needs a certain method. One of the methods is using actors who collaborate or justice collaborator. The provisions on justice collaboratororiginally referred to Article 10 paragraph (2) of Law No. 13 of 2006 on Protection of Witnesses and Victims –but there are indications that these provisions do not provide protection to the justice collaborator. Because even though he plays as a collaborating actor,   it does not result in a loss of authority of the state to prosecute the concerned. This provision is considered violating the principle of lex certain criminal law, for  its ambiguity and multiple interpretations. Constitutional Court in its decision No. 42/PUU-VIII/2010states that Article 10 paragraph (2) regarding a quoprovision is not contrary to the 1945 Constitution. Without realizing it, Constitutional Court has come affirming the lack of protection on the collaborating actors. The fate of justice collaboratorthen finds the clarity in Article 10 paragraph (1) of Law No. 31 of 2014 on Protection on Witnesses and Victims. In the future, with reference to a quo provision, there is no guarantee to the justice collaboratorthat he would not be prosecuted either criminal or civil, except for statements or testimony that is not done in good faith. Besides regulated under legislation of Witnesses and Victims Protection, protection of the justice collaboratorhas also been set in UNTOC 2000 and UNCAC 2003.
Perspektif Konstitusional Kedudukan Negara dan Swasta dalam Pengelolaan Sumber Daya Air Menurut UUD 1945 Kasim, Helmi; Anindyajati, Titis
Jurnal Konstitusi Vol 13, No 2 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (436.147 KB) | DOI: 10.31078/jk13210

Abstract

This research discusses the constitutional perspective of water resources management and its relation to the position of the state and the private sector in the management of water resources. This research examines the decision of the Constitutional Court in the judicial review of Law No. 7 of 2004 on Water Resources. There are two issues discussed in these studies namely (i) what is the constitutional perspective of water resource management and (ii) what is the position of the state and the private sector in water resources management? This research uses normative law research. The results showed that there are two constitutional perspectives in water resources management which are the perspective of control by the state under Article 33 paragraph (3) and the perspective of Human Rights perspective based on Article 28H of the 1945 Constitution. Based on the perspective of control  by the state, management of water resources should be controlled by the state from upstream to downstream. The state should take control of water resources  and establish distribution channels to meet the needs of the citizens on the water. From a human rights perspective, the state is obliged to protect, promote and fulfill the right  to water.  This obligation cannot be left to the private sector especially in water management based on its primary function. Therefore, the overall water management should be done by the state through the State Owned Enterprises or Regional Owned Enterprises. In fact, the monopoly of water management is a policy option that can be taken by the state. On the other hand, the private sector can take a part to commercialize water based on the use of water in its secondary function for industrial use through licensing mechanism. The study concluded that the state has an obligation to meet the citizens’ rights to water in order to meet the needs of a decent life based on primary functions of water. Secondary functions can be operated by private sectors.
Mewujudkan Keadilan, Kepastian dan Kemanfaatan Hukum dalam Qanun Bendera dan Lambang Aceh Ridwansyah, Muhammad
Jurnal Konstitusi Vol 13, No 2 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (443.576 KB) | DOI: 10.31078/jk1323

Abstract

Article 246 paragraph (2) of Law No. 11 Year 2006 concerning Aceh Government may stipulate that the Aceh government and the Aceh region determine the flag and emblem that reflects the privileges and specificity. It is indeed the opposite opinion with the provision of Article 6 (4) of Governement Regulation No. 77 Year  2007 on Regional Symbols which states that the logo design of regional flag should not have similarity in its essential part or in its entirety with logo design and the flag of the banned organization or association or institution or separatist movement in Indonesian. The above explanation makes the writer interested in aanalysing it further with existing legal theory. The research question is what is the position of the flag and emblem of Aceh in relation to legal justice. What is the influence of the flag and emblem of the province of Aceh in the effort to unite the people of Aceh towards legal certainty. How does the flag and emblem of Aceh influence legal order in Indonesia, and is there any legal utility. The method used is descriptive research analysis which is a study that aims to describe or illustrate systematically, factually and accurately a population or certain regions regarding the nature or certain factors. Research results show that the Qanun made should meet the elements of legal objectives in order to be more beneficial to the community at large.
Politik Hukum Putusan MK Nomor 36/PUU-X/2012 dalam Upaya Mengembalikan Kedaulatan Negara dan Perlindungan HAM Asnawi, Habib Shulton
Jurnal Konstitusi Vol 13, No 2 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (65.201 KB) | DOI: 10.31078/jk1324

Abstract

The background of this paper departs from concern over the fragility of the value of Indonesia's sovereignty which has an impact on the violations of the rights of Indonesian citizens (human rights). Law No. 22 of 2001 on Oil and Gas (Oil and Gas Law) has undermined the sovereignty of the state and the nation's economic sovereignty. Oil and Gas Law poses systemic impact on people's lives and could harm the country's finances. This is because oil and gas law opened liberalization of oil and gas management which is highly dominated by foreign entity since oil and gas world in Indonesia is dominated by foreign companies up to 89 percent. Therefore, in an effort to restore the sovereignty of the Republic of Indonesia in the field of oil and gas, the Constitutional Court as a State institution has taken progressive step in its decision No. 36 / PUU-X / 2012 on the dissolution of BP Migas. The legal policy of the Court decision constitute a wise choice and is a progressive step in the field of law, especially the protection of human rights of the people of Indonesia.
Prediktabilitas Ajudikasi Konstitusional: Mahkamah Konstitusi dan Pengujian Undang-Undang Kurnia, Titon Slamet
Jurnal Konstitusi Vol 13, No 2 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (391.056 KB) | DOI: 10.31078/jk1322

Abstract

There is a strong commitment that constitutional adjudication should be more predictable. As a principle, what has been rightly decided in the past should be the law for the future cases or controvercies. This article makes a substantial critics directed to the constitutional court of decision Number 14/PUU-XI/2013 on the constitutionality of presidential election rules. This articles argues that the decision shows that predictability is still a serious matter in constitutional adjudication in Indonesia. The author then recommends that to be more predictable the constitutional of court should make a judicial tradition for respecting its past right decisions.
Presidensialisme di Indonesia Antara Amanah Konstitusi dan Kuasa Partai Polamolo, Susanto
Jurnal Konstitusi Vol 13, No 2 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (499.906 KB) | DOI: 10.31078/jk1325

Abstract

Presidential power in Indonesia, was born exactly in between the mandate of the constitution, and the power of the party. Various constitutional experiments since the era of Sukarno, Suharto, to the current era of reform, shows how the starting- pull of interests, especially the interests of political parties melingkati Indonesian presidential system. The president’s powers in many respects, depend on how the political constellation, so the coalition model was prone to deadlocks, as a result of the apparent coalition. Therefore, in the future, the constitution must be addressed, and should clearly indicate the limits of political parties, so that the presidential system can really concentrate to the   people.
Calon Tunggal dalam Pilkada Serentak Tahun 2015 terhadap Putusan Mahkamah Konstitusi No 100/PUU-XIII/2015 Nazriyah, R.
Jurnal Konstitusi Vol 13, No 2 (2016)
Publisher : Mahkamah Konstitusi Republik Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (449.393 KB) | DOI: 10.31078/jk1327

Abstract

The phenomenon of a pair-single candidate threatens delays in the implementation of simultaneous Regional Head Elections in some districts until 2017. Although the Commission extends the registration period of candidates to avoid the delay of elections simultaneously, there are still some districts that have a single candidate. The law on elections has not set the provisions definitely regarding what should be done if there is the phenomenon of a single candidate. Finally the parties who feel aggrieved the rights had filed a judicial election law to the Constitutional Court (MK) to find solutions to these issues. In its decision, the Court considered that the Act mandates the election as the executor of the sovereignty of the people to elect regional heads directly and democratically. Thus, the local elections should ensure the realization of the highest power in the hands of the people. In addition, the Court also considers the formulation of norms of Law No. 8 of 2015, which requires the presence of more than one pair of candidates does not provide a solution, which led to the legal vacuum. This can result in absent of holding the elections. Local elections which are only followed by a single pair of candidates, the mechanism selection is to determine whether the “Agree”  or “Disagree” with   the prospective partner. If it turns out the people’s voice is more to select “Agree” then the candidate is designated as regional head and deputy head of the selected district. Conversely, if it turns out the people’s voice is more to select “Disagree” then in such circumstances the election is postponed until the next local elections simultaneously.

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