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INDONESIA
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 540 Documents
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Aktualisasi Checks And Balances Lembaga Negara: Antara Majelis Permusyawaratan Rakyat dan Mahkamah Konstitusi Hanif Fudin
Jurnal Konstitusi Vol. 19 No. 1 (2022)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1919

Abstract

The 1945 Constitution as the constitution of the Indonesian state which adopts a distribution of power system accompanied by a mechanism of checks and balances between state institutions based on popular sovereignty. In this case, as the People's Consultative Assembly and the Constitutional Court which have the authority related to the 1945 Constitution directly. Then it contains the research distinction that is the actual inherence of the authority of the People's Consultative Assembly and the Constitutional Court institutions as the guardians of the constitution through a technical review of checks and balances. Therefore, to scientifically strengthen this legal research, a juridical-normative, philosophical and conceptual-critical approach is used. On that basis, it is considered that between the People's Consultative Assembly and the Constitutional Court have actual significance of the checks and balances mechanism on their institutional authority as the guardian of the constitution. Therefore, it has implications for strengthening the institutional authority of the said state institution and realizing the order of legal civilization and democracy in the 1945 Constitution as the state constitution which is the central point of the administration of the Indonesian state as a democratic law state.
Menguji Ketangguhan Realisme: Kritik terhadap Putusan Mahkamah Konstitusi Nomor 14/PUU-XI/2013 Pasca Pemilu Serentak 2019 Titon Slamet Kurnia
Jurnal Konstitusi Vol. 19 No. 1 (2022)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1915

Abstract

This article examines Constitutional Court Decision Number 14/PUU-XI/2013 following the simultaneous elections of 2019. The object is the correctness of the utilisation of realism as a theory of adjudication by the Court in deciding the constitutionality of Law Number 42 of 2008. It can be concluded that, the Court’s decision is false, i.e. it fails to strengthen presidential in Indonesia, as expected by the Court, according to coattail effect theory. Hence, responding to this failure, this article suggests a caveat that the utilisation of realism should anticipate its fallibility. Therefore, responding to the issue to be more general, this article also suggests a proposal for a constitutional amendment to restructure the judicial review mechanism in accordance with the Canadian model known as, conceptually, judicial review with legislative finality. The recommendation aims to anticipate judicial error in constitutional interpretation as shown by the Constitutional Court Decision Number 14/PUU-XI/2013.
Konsep Fairness John Rawls, Kritik dan Relevansinya Sunaryo Sunaryo
Jurnal Konstitusi Vol. 19 No. 1 (2022)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1911

Abstract

Justice is very fundamental in a pluralistic society. Rawls's 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's 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.
Human Rights and Constitutionality Issues of Blasphemy Law in Indonesia Ismail Hasani; Halili Halili
Jurnal Konstitusi Vol. 19 No. 2 (2022)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1927

Abstract

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

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1921

Abstract

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

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1929

Abstract

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 : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1924

Abstract

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.
Anomali Asas Non-Retroaktif dalam Kejahatan Genosida, Bertentangan dengan HAM? Nurhidayatuloh Nurhidayatuloh; Akhmad Idris; Rizka Nurliyantika; Fatimatuz Zuhro
Jurnal Konstitusi Vol. 19 No. 2 (2022)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1923

Abstract

The crime of genocide is one of the most serious international crimes stipulated in the Rome Statute. Previously, genocide was regulated in the Convention on Genocide entered into force on 12 January 1951. The convention and the Rome Statute do not allow retroactivity. However, retroactivity appears in the Indonesian Law on the Human Rights Court and is strengthened through the Indonesian Constitutional Court's Decision. This study focuses on the neglect of the non-retroactive principle in the Law on Human Rights Courts and the extent to which the retroactive period. This research uses normative-legal method with a statutory and case approaches. The result shows that ignoring the non-retoactive principle is contrary to international law and international human rights regulations. Hence, the Constitutional Court's decision that strengthens retroactivity can be interpreted that the Court maintains human rights while at the same time violates human rights by not accurately interpreting the word “derogation” and “restriction” in Article 28J of the 1945 Constitution.
Teori Utilitarianisme Jeremy Bentham: Tujuan Hukum Atau Metode Pengujian Produk Hukum? Endang Pratiwi; Theo Negoro; Hassanain Haykal
Jurnal Konstitusi Vol. 19 No. 2 (2022)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1922

Abstract

Utility as a legal purpose has become a belief in Indonesia. In his literature, Bentham implies that utility are the dimension of the calculation of pleasure and pain, which is more appropriate to be used as a method of evaluating laws and regulations, rather than for legal purposes. This study tries to dissect the concept of Bentham's utilitarianism theory, and to find its position in the facet of legal thought. The conclusion of this study explains why utility is not a legal purpose. Utility is part of the calculation variables for evaluating legal product evaluation methods, so as to determine whether legal certainty in a legal product is sustainable or not. Furthermore, Bentham's theory of utilitarianism takes the separability thesis and the reductive thesis, as its standpoint of legal positivism, therefore Bentham's utilitarianism theory is not an independent school of thought, but a facet of legal positivism
Penerapan Klausul Bersyarat dalam Putusan Pengujian Formil Undang-Undang Faiz Rahman
Jurnal Konstitusi Vol. 19 No. 2 (2022)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk1926

Abstract

Constitutional Court Decision No. 91/PUU-XVIII/2020 became the first formal review decision granting the submission and using a conditionally unconstitutional model. Slightly different from material review, in a formal review, what is declared unconstitutional is the procedure. Consequently, it affects the differences in applying conditionally clauses in a formal review. This research explores the conditionally clauses model used in formal review and its implication. Furthermore, this research illustrates those three clauses are likely always accompanied the conditionally unconstitutional ruling, namely: order to lawmakers to revise the law-making process in a specific period; statement regarding the transitional period of the enforcement of the Law; and statement that the Law will become permanently unconstitutional if no changes are made. Nevertheless, considering the design of formal review in the Constitutional Court Law and implications of conditionally decision in formal review, the appropriateness of conditionally decision model for formal constitutional review need to be reconsidered.

Page 49 of 54 | Total Record : 540

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