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Abdul Basid Fuadi
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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
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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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Redesign of Positive Fictitious Efforts After the Job Creation Law : Redesain Upaya Fiktif Positif Pasca Undang-Undang Cipta Kerja Zaka Firma Aditya; Sholahuddin Al-Fatih
Jurnal Konstitusi Vol. 20 No. 2 (2023)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk2029

Abstract

The Job Creation Law has not only changed positive-fictitious construction from ten to five days, but also abolished the administration court authority in deciding positive-fictitious applications. Naturally, every administrative action can be sued by the public to court with the aim that these actions follow legal rules and human rights values. Thus, the administrative court authority in deciding positive-fictitious applications is a control mechanism so that there is no abuse of authority from government. This article discuss: 1) the legal-historical and dynamics of positive-fictitious decisions; 2) the implications of positive-fictitious arrangements in job creation law, and 3) the redesign of positive-fictitious efforts after job creation law. The results of this research indicate that after the Job Creation Law, it is necessary to review the positive-fictitious decisions, especially by paying attention to the institution authorized to decide on fictitious applications, the use of AI applications, and the time of fictitious submissions.
Convergence of Constitutional Interpretation to the Test of Laws Through a Constitutional Dialogue Approach: Konvergensi Penafsiran Konstitusional Terhadap Pengujian Undang-Undang Melalui Pendekatan Constitutional Dialogue Made Oka Cahyadi Wiguna
Jurnal Konstitusi Vol. 20 No. 3 (2023)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk3038

Abstract

The Constitutional Court's presence yields positive impacts on constitutional law, yet isn't devoid of controversies, including Judge misconduct, transgression of 'nemo judex idoneus in propria causa' principle, and potential super body transformation. This paper aims to comprehend and analyze constitutional interpretation dominance in assessing laws against the 1945 Constitution through a constitutional dialogue approach. This normative writing employs legal, historical, and conceptual methods. Findings underscore: 1) Demonstrating respect for state institutions, notably the People's Consultative Assembly of Indonesia. 2) Establishing a more democratic system to test the 1945 Constitution's compatibility in the Constitutional Court. 3) Breaking the monopoly of Constitutional Court-centric constitutional interpretation. 4) Reviving 'nemo judex idoneus in propria causa' principle is pivotal due to extensive testing of Constitutional Court Law, addressing concerns about verdict impartiality.
The Overlapping Consensus in the Indonesian Constitution and Its Challenges: Konsensus Berkeadilan dalam Konstitusi Indonesia dan Tantangan-tantangannya Sunaryo Sunaryo
Jurnal Konstitusi Vol. 20 No. 3 (2023)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk3031

Abstract

Pancasila and UUD 1945 form the foundation of Indonesia's social unity. This article analyzes whether Pancasila and UUD 1945 align with John Rawls' criteria of overlapping consensus. The article concludes that the agreement among Indonesia's founding fathers fulfills the requirements of an "overlapping consensus." This consensus encompasses principles of justice that remain independent of any comprehensive doctrine, ensuring the protection of citizens' fundamental rights and the most disadvantaged groups. Despite its imperfections, this consensus significantly contributes to Indonesian social unity. Nevertheless, the reality is marked by challenges and threats that require resolution. Some groups seek to dominate others, and specific rules deviate from the principles of justice. The state and society's commitment to uphold the overlapping consensus is crucial. Among the institutions entrusted with maintaining this consensus is the Constitutional Court.
Dynamics of Granting Legal Standing to the Indigenous Community in Constitutional Review of Law: Dinamika Pemberian Kedudukan Hukum Pemohon bagi Masyarakat Hukum Adat dalam Pengujian Undang-Undang Dian Agung Wicaksono
Jurnal Konstitusi Vol. 20 No. 3 (2023)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk3037

Abstract

The research on the existence of Indigenous Community (IC) is interesting to discuss heretofore. Previous studies have discussed the relationship between IC and Constitutional Court (CC) authority in judicial review of the Law (JR). Still, no research has comprehensively mapped the dynamics of granting the Litigants' legal standing to IC in JR since the establishment of CC. This research aims to obtain a portrait of the dynamics and basis of CC for granting legal standing to IC as a Litigant in JR and providing a basic proposal for determining IC’s legal standing as a Litigant in JR. This normative legal research analyzes secondary data by comprehensively mapping decisions on JR with IC as Petitioner since CC was established in 2003 to 2019. The study's results indicate several patterns of legal considerations and the basis of legal considerations for the CC in granting legal standing to IC as Litigants in JR.
Measuring the Compatibility of Conditional Decision in Formal Constitutional Review by the Constitutional Court: Menakar Kompatibilitas Putusan Bersyarat dalam Pengujian Formil Undang-Undang oleh Mahkamah Konstitusi Faiz Rahman; Dian Agung Wicaksono
Jurnal Konstitusi Vol. 20 No. 3 (2023)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk3036

Abstract

The existence of conditional decisions becomes dynamic in constitutional review, including their use in procedural constitutional reviews. Constitutional Court Decision No. 91/PUU-XVIII/2020 is the first decision to grant the petition and use a conditional decision model. Unfortunately, as mentioned earlier, using the conditional decision model in the decision results in discourse among various parties, including government institutions, law enforcers, academics, and the general public. With the growing discourse, this research aims to analyze the compatibility of the conditional decision model in formal constitutional reviews by examining various formal constitutional review decisions and the conditional decisions handed down by the Constitutional Court. This research indicates that the conditional decision is incompatible with formal constitutional review. This can be observed from the incompatibility of conditional decisions with the regulatory design of formal constitutional reviews and their legal consequences.
Interpretation of Interfaith and/or Belief Marriage by Judges: Disparity and Legal Vacuum: Penafsiran Perkawinan Beda Agama dan/atau Kepercayaan Oleh Hakim: Disparitas dan Kekosongan Hukum Umar Haris Sanjaya
Jurnal Konstitusi Vol. 20 No. 3 (2023)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk3039

Abstract

Judges experience disparities in interpreting marriages of different beliefs and/or religions, resulting in different legal products, both determinations made. There is a difference between granting and rejecting. Interestingly, the understanding of the Constitutional Court judges and judges at District Courts has a significant disparity where one says there is a legal vacuum and the other is clear in accordance with the law. This study concerning a disparity in interfaith marriages in its determination and the legal vacuum of different-faith marriages created by judges in court. This study concludes that in practice judges in court in giving considerations believe there is a legal vacuum against marriages of different beliefs, as a result judges determine whether there is a disparity determination that is granted or not. The Constitutional Court itself interprets its decisions (2014 and 2022) that interfaith marriages are clear and do not constitute a legal vacuum in its enforcement.
The Use of Progressive Law Phrase in Constitutional Court Decisions: Context, Meaning, and Implication: Penggunaan Frasa Hukum Progresif dalam Putusan Mahkamah Konstitusi: Konteks, Makna, dan Implikasi Muhammad Zulfa Aulia; Bimo Fajar Hantoro; Wawan Sanjaya; Mahrus Ali
Jurnal Konstitusi Vol. 20 No. 3 (2023)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk3034

Abstract

As an influential legal idea, Satjipto Rahardjo’s progressive law has colored various legal discourses and practices in Indonesia. Court decisions, as legal texts that record and summarize the trial process, also show that litigants, experts, and court judges often use this legal idea. This research will examine how progressive legal phrases are used in court decisions and whether the users have considered their underlying assumptions, pillars, or principles. This research is limited to Constitutional Court decisions in law review cases. The use of progressive legal phrases is generally accompanied by several progressive legal assumptions proposed by Satjipto Rahardjo. However, these are selected and used partially according to the needs and interests of their users, and thus can have bias implications when compared and examined comprehensively based on other assumptions or pillars.
Irregularity Protection of Citizens' Constitutional Rights to the Administrative Silence: Ketidakteraturan Perlindungan Hak Konstitusional Warga Negara Atas Sikap Diam Badan dan/atau Pejabat Pemerintahan Umar Dani Umar
Jurnal Konstitusi Vol. 20 No. 3 (2023)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk3035

Abstract

The Administrative's silence legally was an administrative error, however there are no standard to rule the mechanisms for protecting citizens against those an administrative error. This Research have two objectives. First of all, to analyze whether the changes of negative fictitional to positive fictitional are form of legal irregularity, secondly to study regulatory impact of Positive fictional after the issuance of Law number 11 of 2020 against on the protection of citizens' rights. This Research use normative legal research. The Result of this research showed that repeal of norm can be done by changing those law itself or because of the constitutional court decision. negation of negative fictitional validity into chapter 3 law number 5 of 1986 to the positive fictitional through chapter 53 law number 11 of 2020 impact two things. First, remove access of constitutional citizens right, second, automatic approval decision without supervision can be used as a legality tool and may harm the third parties
Authority Dispute Between State Institutions Whose Authorities from Regulations Below the 1945 Constitution: Sengketa Kewenangan Antarlembaga Negara yang Kewenangannya didasari Peraturan Perundang-undangan di bawah Undang-Undang Dasar 1945 Moh. Roziq Saifulloh; Putri Riska Answendy
Jurnal Konstitusi Vol. 20 No. 3 (2023)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk3032

Abstract

The dispute over authority between state institutions whose authorities are based on regulations under the 1945 Constitution cannot be resolved through a decision (beschikking), considering that matters involving overlapping authority that has been included in the regulations (regelling) and will remain in effect unless one of the matters has been annulled. This research aims to elaborate the pattern of power restriction on state institutions and find out the resolution of authority disputes between state institutions whose authority is based on regulations under the 1945 Constitution. This research is a legal argumentation using a normative research approach. The results of the research show that each state institution obtains authority by attribution, which originates from the 1945 Constitution or from regulations under the 1945 Constitution. The annulment of material containing authority that is sourced from the regulations under the 1945 Constitution can only be carried out through a material test (judicial review) by the judiciary, namely the Supreme Court.
Consumer Empowerment: Safeguarding Consumer Rights Through BPSK’s Arbitration Post the Constitutional Court Decision: Pemberdayaan Konsumen: Melindungi Hak Konsumen Melalui Proses Arbitrase di BPSK Pasca Putusan Mahkamah Konstitusi Rizkisyabana Yulistyaputri; Ratih Lestarini
Jurnal Konstitusi Vol. 20 No. 3 (2023)
Publisher : Constitutional Court of the Republic of Indonesia, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/jk3033

Abstract

The arbitration decision by BPSK, can be filed with objections in accordance with Law 8/1999 and annulment under Law 30/1999. These two actions raise questions related to the arbitration process to resolve consumer disputes, consumer protection, and the impact of the Constitutional Court’s decision on the annulment of arbitration awards. This is because both actions are contrary to the final and binding nature of the arbitration award. Through the doctrinal research method, it was found that three years since the Constitutional Court’s Decision, there has been an increase in decisions related to the annulment of arbitration awards and objections to BPSK decisions. The Constitutional Court Decision has two contrary impacts. It makes easier for the aggrieved party in the process of resolving consumer disputes through arbitration to file for annulment or objection. Meanwhile, it also makes the process of consumer protection through arbitration lose its final and binding force.

Page 54 of 54 | Total Record : 540

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