ISSN / EISSN : 1829-7706 / 2548-1657
Published by: Constitutional Court of the Republic of Indonesia (10.31078)
Total articles ≅ 290
Latest articles in this journal
Jurnal Konstitusi, Volume 19, pp 359-380; https://doi.org/10.31078/jk1925
This study intends to explain the consistency of the Constitutional Court (MK) in making new legal norms by using the doctrine of judicial activism and to explain the factors that underlie the consistency of the Constitutional Court in making new legal norms through normative juridical research by explaining the principles, principles, and analysis of interrelated decisions. This study concludes that the Constitutional Court is inconsistent because it only grants and makes new legal norms in the Constitutional Court Decision Number 5/PUU-V/2007. Meanwhile, in the Constitutional Court's Decision Number 53/PUU-XV/2017, the Constitutional Court refused to make a new norm even though the two cases created discrimination and limited public participation in politics. The inconsistency factors include: 1) jurisprudence factors, 2) the application cannot convince the majority of the judges of the Constitutional Court, and 3) the paradigm factor of judges.
Jurnal Konstitusi, Volume 19, pp 406-430; https://doi.org/10.31078/jk1927
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.
Jurnal Konstitusi, Volume 19, pp 247-268; https://doi.org/10.31078/jk1921
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.
Jurnal Konstitusi, Volume 19, pp 294-313; https://doi.org/10.31078/jk1923
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.
Jurnal Konstitusi, Volume 19, pp 268-293; https://doi.org/10.31078/jk1922
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
Jurnal Konstitusi, Volume 19, pp 431-455; https://doi.org/10.31078/jk1928
The Indonesian State Administrative Court has applied the oplossing theory, where claims related to disputes over the procurement of government goods or services are considered to be merged in the civil realm so that they are assumed to be not authorized to handle the dispute. This research is normative juridical research by comparing the practice of handling cases of government procurement of goods and services in the Indonesian State Administrative Court, the Constitutional Court, and the French Administrative Court. Research shows that there are inconsistencies in the Indonesian state administrative court regarding the interpretation of the oplossing theory after the enactment of Law Number 30 of 2014 concerning Government Administration, while in France, the plaintiff can file a lawsuit in the form of annulment of administrative decisions related to the procurement of government goods and services or a compensation claim. The implication of eliminating the oplossing theory is that a third party can file a claim for compensation against a dispute over the procurement of government goods and services in the state administrative court in accordance with the Constitutional Court Decision Number 22/PUU-XVI/2018 regarding the grace period for filing a lawsuit by a third party.
Jurnal Konstitusi, Volume 19, pp 381-405; https://doi.org/10.31078/jk1926
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.
Jurnal Konstitusi, Volume 19, pp 456-478; https://doi.org/10.31078/jk1929
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.
Jurnal Konstitusi, Volume 19, pp 314-358; https://doi.org/10.31078/jk1924
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.
Jurnal Konstitusi, Volume 19, pp 001-022; https://doi.org/10.31078/jk1911
Keadilan merupakan hal yang sangat fundamental dalam masyarakat majemuk. Pandangan Rawls mengenai keadilan yang dipahami sebagai Justice as Fairness mencoba menawarkan bagaimana kita menata masyarakat yang majemuk secara fair. Konsep fairness dipahami sebagai kemampuan untuk bersikap dan bertindak yang dapat diterima dan didukung secara timbal balik. Dalam pandangan Rawls, adanya penerimaan dan dukungan secara timbal balik dari para subjek yang bebas dan setara, tanpa intimidasi dan tekanan adalah tanda bahwa kesepakatan tersebut fair. Ia menyebut sikap semacam ini sebagai kewarasan publik (reasonableness). Untuk membangun masyarakat majemuk yang fair, kelompok-kelompok yang ada di dalam masyarakat harus mampu bertindak secara waras (reasonable). Dengan kapasitas ini mereka akan mampu menyepakati prinsip-prinsip keadilan yang akan menjadi basis kesatuan sosial (basis of social unity) mereka. Konsep mengenai fairness ini sangat penting untuk masyarakat majemuk seperti Indonesia. Jika kita gagal menghadirkan keadilan dalam masyarakat majemuk, maka kesatuan kita sebagai sebuah masyarakat akan berada dalam ancaman serius. 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.