Judicial Review On The Authority Of National Institution In The Disbanding Of Community Organization Who Are Contradicting The 1945 Constitution Of The Republic Of Indonesia

A community organization who contradicts the constitution will obviously disturb the common order and also disturb the system of Indonesian people and the nation itself, especially if such organization aims to change the Indonesian constitution. In Chapter XVII of Law Number 17 of 2013 regarding Community Organization, later known as the Community Organization Law, it is stated that the disbanding of community organization must go through a procedure which consist of a warning, temporary suspension and then the disbanding by the court of law. In the Community Organization Law, the disbanding of an organization is done by a Judicative Institution which is through the decision of a judicial board. However, the Government Regulation in Lieu of Law Number 2 of 2017 regarding the Amendment on Law Number 17 of 2013 regarding Community Organization, later known as the Government Regulation in Lieu of Community Organization Law states that the disbanding of a Community Organization contradicting the constitution only goes through the administrative admonition, temporary suspension of activity, and later the revocation of listed certification or the revocation of lawful institution status by the Government. The purpose of this research is to discover the authority of National Institution in disbanding Community Organization that contradicts the 1945 Constitution of the Republic of Indonesia and also the authoritative obstacle faced by the national institution in dissolving such organizations. This research is a normative one which researched existing secondary data as a literary data supported by empirical data acquired from interview processes. Result of the research shows that the governmental institution which in this case are the Ministry of Law and Human Rights and Judicative Institution which in this case the Supreme Court has authority to disband Community Organizations that contradicts the 1945 Constitution of the Republic of Indonesia based on normative terms. However, in order to establish justice on said organization, the disbanding must be done by Judicative Institution so that it is more objective, but not by the Supreme Court, but by the Constitutional Court, due to the existence of Public Organizations being closely related to the Constitutional Right the way it is for the Political Parties. This research suggests that the disbanding of Community Organizations that contradicts the 1945 Constitution of the Republic of Indonesia should be done by the Constitutional Court, preceded by material check on the applicable positive law. Keywords: Authority; National Institution; Community Organization; Constitution

Download Full-text

ANALISIS YURIDIS PENDIRIAN DAN PEMBUBARAN ORGANISASI MASYARAKAT

JURIDICA : Jurnal Fakultas Hukum Universitas Gunung Rinjani ◽

10.46601/juridica.v1i1.171 ◽

2020 ◽

Vol 1 (1) ◽

pp. 15-27

Author(s):

M. KHAIRUL WARDI

Keyword(s):

Supreme Court ◽

Government Regulation ◽

Community Organizations ◽

Dissolution Mechanism ◽

Court Decisions ◽

The Supreme Court ◽

Before And After ◽

The Republic ◽

The Government

The spirit of building a nation began before and after Indonesia's independence. One of the ways is by establishing a Social Organization, the provisions of the Law on Mass Organizations under the Staatsblad 1870 Number 64 concerning Legal Entities (Rechtspersoonlijkhied van Vereenigingen) which were established before the Proclamation of Independence of the Republic of Indonesia and consistently maintaining the Unitary State of the Republic of Indonesia. as a national asset and do not need to register in accordance with the provisions of this Law. Organizations are required to have AD and ART to be used as guidelines in carrying out organizational activities, ratification as a Association Legal Entity issued by the Minister of Law and Human Rights. CBOs are prohibited from spreading teachings and actions that are contrary to Pancasila. So that Law Number 17 of 2013 concerning Mass Organizations is no longer sufficient, finally the government issued Government Regulation in Lieu of Law Number 2 of 2017 to explain more broadly about prohibited teachings / understandings. The research method used is normative research, with the focus of the study being on the statutory approach to the establishment and dissolution of Community Organizations and reviewing the Supreme Court Decisions related to the establishment and dissolution of CSOs by taking case studies of NW and HTI decisions. The purpose of this study is to find out how the procedures for establishing community organizations and the dissolution mechanism of CSOs. Furthermore, conducting a case study based on the Decision of the Supreme Court Number 37K / TUN / 2016 concerning the establishment of Nahdlatul Wathan (NW) and Decision Number 27K / TUN / 2019 concerning the dissolution of the Indonesian Hizb ut-Tahrir Association (HTI).

Download Full-text

Pengujian Peraturan Pemerintah Pengganti Undang-Undang

10.31219/osf.io/z289x ◽

2018 ◽

Author(s):

Ali Marwan Hsb

Keyword(s):

Supreme Court ◽

Government Regulation ◽

Court Decision ◽

Constitutional Court ◽

The Supreme Court ◽

Form Of Government ◽

The Law ◽

The Republic

Article 24C Section (1) of the 1945 Constitution of the Republic of Indonesia authorizes the Constitutional Court to reviewthe law against the constitution. However, when referring to the hierarchy of legislation, the law has the equal hierarchy with government regulation in lieu of law. It makes a question whether the Constitutional Court truly has the authority to review government regulation in lieu of law against the constitution? Based on the research in this paper, it was found that by the Constitutional Court Decision Number 138/PUU-VII/2009, the Constitutional Court stated that the authority to review government regulation in lieu of law under the authority of the Constitutional Court because the substance of government regulation in lieu of law is similar with the substance of law. So, the Constitutional Court has the authority to review a government regulation in lieu of law materially. Such decision is correct; the Constitutional Court has the authority to review a government regulation in lieu of law in material because the substance is similar with the law. While formally reviewing should be the authority of the Supreme Court due to government regulation in lieu of law formally is in the form of government regulation

Download Full-text

THE COMPARISON BETWEEN THE JUDICIAL COMMISSION OF THE REPUBLIC OF INDONESIA AND THE NETHERLANDS COUNCIL FOR THE JUDICIARY

UNIFIKASI Jurnal Ilmu Hukum ◽

10.25134/unifikasi.v6i1.1527 ◽

2019 ◽

Vol 6 (1) ◽

pp. 40

Author(s):

Suparto Suparto

Keyword(s):

The Netherlands ◽

Supreme Court ◽

Code Of Ethics ◽

Secondary Data ◽

European Countries ◽

Judicial Power ◽

Constitutional Court ◽

The Supreme Court ◽

The Republic ◽

Personnel Administration

The purpose of this study is to analyze the position and authority of the Judicial Commission of the Republic of Indonesia and its comparison to the Netherlands Council for the Judiciary. This comparative study applied a normative juridical method. The data used in this study were secondary data. The collected data were then analyzed qualitatively. The results showed that Judicial Commission has an important position in judicial system in Indonesia so as structurally, its position is aligned with the Supreme Court and the Constitutional Court of the Republic of Indonesia. Yet, functionally, its role is auxiliary to the judicial power institutions. Although the function of the Judicial Commission is related to judicial power, but the Judicial Commission is not an agent of judicial power, rather, it is an agency enforcing code of ethics of judges. Besides, the Judicial Commission is also not involved in the organization, personnel, administration and financial matters of judges. This condition is different from the Judicial Commission in European countries, such as the Netherlands. The Judicial Commission in the Netherlands (The Netherlands Council for the Judiciary) has an authority in the area of technical policy and policy making in the field of justice. The Netherlands Council for the Judiciary and other Judicial Commission in European countries generally have the authority in managing organization, budget and administration as well as in conducting promotions, transfers, and recruitments as well as imposing sanctions on judges. Thus, the Supreme Court only focuses on carrying out judicial functions and does not deal with administrative and judicial organization matters.�Tujuan dari penelitian ini adalah untuk mengetahui dan memahami tentang kedudukan dan kewenangan Komisi Yudisial Republik Indonesia serta perbandingannya dengan Komisi Yudisial Belanda. Metode penelitian yang digunakan yaitu yuridis normatif dengan cara perbandingan (komparatif). Data yang digunakan adalah data sekunder sedangkan analisis data dilakukan secara kualitatif. Hasil penelitian yaitu bahwa kedudukan Komisi Yudisial sangat penting, sehinggasecara struktural kedudukannya diposisikan sederajat dengan Mahkamah Agung dan Mahkamah Konstitusi. Namun demikian� secara fungsionalperannya bersifat penunjang (auxiliary) terhadap lembaga kekuasaan kehakiman. Komisi Yudisial meskipun fungsinya terkait dengan kekuasaan kehakiman tetapi bukan� pelaku kekuasaan kehakiman, melainkan lembaga penegak norma etik (code of ethics) dari hakim. Selain itu Komisi Yudisial juga tidak terlibat dalam hal organisasi, personalia, administrasi dan keuangan para hakim. Hal ini berbeda dengan Komisi Yudisial yang ada di negara Eropa misalnya Belanda. Komisi Yudisial di Belanda (Netherland Council for Judiciary) memiliki kewenangan pada area kebijakan teknis dan pembuatan kebijakan pada bidang peradilan.Komisi Yudisial Belanda dan di Eropa pada umumnya mempunyai kewenangan dalam hal mengelola organisasi, anggaran dan administrasi peradilan termasuk dalam melakukan promosi, mutasi, rekruitmen dan memberikan sanksi terhadap hakim. Mahkamah Agung hanya fokus melaksanakan fungsi peradilan yaitu mengadili

Download Full-text

Problematika Peraturan Pengganti Undang-Undang Nomor 1 Tahun 2017 tentang Organisasi Masyarakat

Mulawarman Law Review ◽

10.30872/mulrev.v4i1.52 ◽

2019 ◽

pp. 226-237

Author(s):

Rezki Robiatul Aisyiah Ismail

Keyword(s):

Human Rights ◽

Social Organization ◽

Government Regulation ◽

Community Organization ◽

Community Organizations ◽

The State ◽

Freedom Of Association ◽

The Law ◽

The Republic ◽

The Government

Indonesia is a democratic constitutional state set forth in article 1 paragraph (3) of the 1945 Constitution of the State of the Republic of Indonesia, as a legal state for running a state and protection of human rights under the law. One of them is in Article 28 E Paragraph (3) of the 1945 Constitution of the State of the Republic of Indonesia which states that everyone has the right to freedom of association, assembly, and expression. The regulation concerning the Organization of the Community is in fact set out in Law No. 17 of 2013 on Community Organizations. Community organization is an organization founded and formed by the community voluntarily based on the similarity of aspirations, wills, needs, interests, activities and objectives to participate in development in order to achieve the objectives of the Unitary State of the Republic of Indonesia based on Pancasila. Community organizations may be in the form of two, incorporated and non-legal entities. The Government issued a Regulation in Lieu of Law of the Republic of Indonesia Number 2 Year 2017 on the amendment to Law No. 17 of 2013 on Social Organization and then with the Regulation of Lieu of the Law the government made a policy that the Government in this case gave authority to the Ministry of Justice and Human Rights Asasi Manusia dissolved social organization which contradict with principle of Pancasila one of them is Hizbut Tahrir Indonesia discussion Government Regulation of society organization still has weakness substantially. Government regulation in lieu of laws of community organizations in order to reinforce the principle of contrarius actus is not appropriate because it has actually attached to government officials without the need to be affirmed in the legislation.

Download Full-text

Ultra Vires Kewenangan Kemenkumham sebagai Pengadilan Non-Litigasi dalam Sistem Ketatanegaraan Indonesia

Ajudikasi Jurnal Ilmu Hukum ◽

10.30656/ajudikasi.v3i1.1092 ◽

2019 ◽

Vol 3 (1) ◽

pp. 15

Author(s):

Ahmad Gelora Mahardika

Keyword(s):

Human Rights ◽

Supreme Court ◽

Constitutional Court ◽

The Third ◽

The Supreme Court ◽

Directorate General ◽

The Republic ◽

The Government

The decision of the Constitutional Court Number 56 / PUU-XIV / 2016 revoked the permit for the Government to request a Regional Regulation and hand over the authority to the Supreme Court. However, the Government through the Ministry of Law and Human Rights then issued Regulation of the Minister of Law and Human Rights No. 32 of 2017 concerning Procedures for Settling Disputes in Legislation through the Non-litigation Path which in principle provided permits to support the Directorate General of Regulation. Initially this authority did not exist in the Minister of Law and Human Rights Regulation of the Republic of Indonesia Number 29 of 2015 concerning Organization and Work Procedure of the Ministry of Law and Human Rights of the Republic of Indonesia, but then the authority was regulated in Republic of Indonesia Minister of Law and Human Rights Regulation Number 24 Year 2018 Regarding the Third Amendment to the Regulation of the Minister of Law and Human Rights Number 29 of 2015 concerning the Organization and Work Procedure of the Ministry of Law and Human Rights of the Republic of Indonesia. Besides inconstitutional, after being approved, it was also stipulated by law, this authority was also previously owned.

Download Full-text

DEKADENSI PEMILIHAN HAKIM AGUNG OLEH DPR RI

Bilancia: Jurnal Studi Ilmu Syariah dan Hukum ◽

10.24239/blc.v14i1.509 ◽

2020 ◽

Vol 14 (1) ◽

pp. 73-104

Author(s):

Rustam Magun Pikahulan

Keyword(s):

Supreme Court ◽

Rule Of Law ◽

House Of Representatives ◽

Good Governance ◽

Constitutional Court ◽

Due Diligence ◽

The Rule Of Law ◽

The Supreme Court ◽

Institutional Status ◽

The Government

Abstract: The Plato's conception of the rule of law states that good governance is based on good law. The organization also spreads to the world of Supreme Court justices, the election caused a decadence to the institutional status of the House of Representatives as a people's representative in the government whose implementation was not in line with the decision of the Constitutional Court. Based on the decision of the Constitutional Court No.27/PUU-XI/2013 explains that the House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only approve or disapprove candidates for Supreme Court Justices that have been submitted by the Judicial Commission. In addition, the proportion of proposed Supreme Court Justices from the judicial commission to the House of Representatives (DPR) has changed, whereas previously the Judicial Commission had to propose 3 (three) of each vacancy for the Justices, now it is only one of each vacant for Supreme Court Judges. by the Supreme Court. The House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only "approve" or "disagree" the Supreme Judge candidates nominated by the Judicial Commission.

Download Full-text

ANALISIS PENYELESIAN SENGKETA INTERNAL LEMBAGA NEGARA (STUDI KASUS PELANTIKAN PIMPINAN DEWAN PERWAKILAN DAERAH REPUBLIK INDONESIA PERIODE 2017-2019)

Jurnal Hukum Adigama ◽

10.24912/adigama.v1i1.2149 ◽

2018 ◽

Vol 1 (1) ◽

pp. 364

Author(s):

Yanzah Bagas Nugraha ◽

Dwi Andayani Budisetyowati

Keyword(s):

Supreme Court ◽

State Institution ◽

The State ◽

The Body ◽

Internal Conflict ◽

Constitutional Court ◽

Leadership Tenure ◽

The People ◽

The Supreme Court ◽

The Republic

The establishment of the Regional Representative Council of the Republic of Indonesia so called Dewan Perwakilan Daerah (DPD-RI) at least has two objectives. The first is to enhance justice for the people in the region. Secondly, to expanding and increasing the participation of local communities in national life. The process to form this state institution is done by amending the 3rd amendment of the 1945 Constitution of the Republic Indonesia. However, in doing that amendment there was an internal conflict within the body of DPD-RI involving the old and the new leaders of this institution last year. The length of leadership tenure which was initially made 5 years was amended to became 2.5 years. The different length of leadership tenure was then canceled by the Supreme Court and it was decided to be the same as other institution such as The People’s Consultative Assembly and The House of Representative in that the leadership tenure should be in accordance with the electoral cycle of 5 years. However, although the regulation of DPD-RI has been canceled, the Supreme Court keeps sending its representative to guide the oath of position of the new DPD-RI leadership. The only regulation that has been introduced by the state was regulation toward conflict between state institutions and this conflict can merely be resolved by the Constitutional Court. Therefore, there is an urgent need for the state to seek solution to solve this problem to prevent the same thing happened to other state institution in the future.

Download Full-text

The Settlement of Boundary Disputes Through Testing of Legislation in Indonesia

SHS Web of Conferences ◽

10.1051/shsconf/20185401003 ◽

2018 ◽

Vol 54 ◽

pp. 01003

Author(s):

Suparto ◽

Rahdiansyah

Keyword(s):

Supreme Court ◽

Supreme Court Decision ◽

Constitutional Court ◽

Regional Autonomy ◽

Boundary Disputes ◽

Legal Principle ◽

The Supreme Court ◽

Long Time ◽

The Government ◽

Settlement Of Disputes

Boundary dispute is a new phenomenon that occurred in the era of regional autonomy followed by the expansion of the region. One of them occurred between Kepulauan Riau and Jambi Provinces related to Berhala Island ownership. Settlement of disputes between these two provinces took quite a long time and also caused tensions between two provinces. Actually, the government through the Ministry of Home Affairs has issued a regulation to solve the boundary problem of this area namely the Minister of Home Affairs Regulation No.1 in 2006 and No. 76 in 2012 on Guidelines for Confirmation of the Boundaries, however, is still less effective because although it has been done in such a way the party who feels aggrieved still take another way that is by testing the legislation to the Supreme Court or Mahkamah Konstitusional (Constitutional Court). An example is the boundary dispute between Kepulauan Riau and Jambi Province which was resolved through the examination of legislation to the Supreme Court and the Constitutional Court. In the case, there were 3 decisions, namely Supreme Court Decision No.49P/HUM/2011, Decision of the Constitutional Court No. 32/PUU-X/2012 and the decision of the Constitutional Court No. 62/PUU-X/2012. Based on the research results obtained as follows 1). Implementation of the principle or legal principle of lex posterior derogat lex priori by the Supreme Court 2). The decision of the Supreme Court was taken into consideration in the decision of the Constitutional Court 3). The cause of the territorial boundary disputes between Kepulauan Riau Province and Jambi Province was the synchronization of 3 related laws namely Indonesian Law no. 31 in 2003, Law no. 25 in 2002 and Law no. 54 of 1999.

Download Full-text

MODEL PENGUJIAN PERATURAN PERUNDANG-UNDANGAN SATU ATAP MELALUI MAHKAMAH KONSTITUSI

Jurnal Ilmiah Hukum LEGALITY ◽

10.22219/jihl.v25i2.6005 ◽

2018 ◽

Vol 25 (2) ◽

pp. 247

Author(s):

Sholahuddin Al-Fatih

Keyword(s):

Supreme Court ◽

Judicial Review ◽

Constitutional Court ◽

Regulatory Testing ◽

The Supreme Court ◽

New Ideas ◽

The Republic ◽

Bureaucratic Reform

Post-reform of the role of judicial institution is run by two institutions namely the Supreme Court and the Constitutional Court. The duties and authorities of the two institutions are regulated in the Constitution of the Republic of Indonesia 1945 and the act that addresses the three institutions more specifically. Several powers possessed by the Supreme Court and the Constitutional Court, one of them is the authority to judicial review. The Constitutional Court is authorized to review the act on the Constitution of the Republic of Indonesia 1945, while the Supreme Court is authorized to review under the Act on the above legislation.The unfairness of the regulatory testing function is feared to trigger bureaucratic inefficiency. Based on data released by the Supreme Court Clerk, it was recorded during 2016 that the Supreme Court received 18,514 cases, including the Hak Uji Materi (HUM) subject to legislation under the Act. While the number of cases of judicial review of the Constitutional Court in 2016-2017 amounted to only 332 cases. Therefore, it is necessary to conduct a bureaucratic reform and provide new ideas related to the model of one court of judicial review in Indonesia. So that in this paper will be discussed deeply about problematic of judicial review in Indonesia and the authority of the Constitutional Court to review the act under one roof with SIJURI mechanism.

Download Full-text

KEDUDUKAN KOMISI YUDISIAL DALAM SISTEM PENYELENGGARAAN PENGAWASAN KODE ETIK HAKIM PASCA PUTUSAN MK NO 43/PUU-XIII/2015

Hukum dan Masyarakat Madani ◽

10.26623/humani.v6i2.948 ◽

2016 ◽

Vol 6 (2) ◽

pp. 15

Author(s):

Heru Nuswanto ◽

Amri P. Sihotang,

Keyword(s):

Supreme Court ◽

Code Of Conduct ◽

Regulatory System ◽

Constitutional Court ◽

Court Ruling ◽

Basic Principles ◽

The Supreme Court ◽

The Republic ◽

Constitutional System ◽

Sense Of Justice

Kedudukan komisi yudisial sebagai pengawas system peradilan di Indonesia di rasa sangat penting untuk menjadikan system peradilan di Indonesia professional dan berintegritas. Persoalan kemudian hadir pasca putusan <a href="http://kepaniteraan.mahkamahagung.go.id/kegiatan/1181-putusan-mk-no-43-puu-xiii-2015-proses-seleksi-hakim-tingkat-pertama-tidak-perlu-melibatkan-ky">MK No 43/PUU-XIII/2015</a> dimana dalam putusan menjadikan Komisi Yudisial tidak lagi sebagai pihak yang ikut serta mengawasi perekrutan hakim tingkat pertama. Padahal dalam system ketatanegaraan jika lembaga komisi yudisial peran dan fungsinya dibatasi akan menjadikan mahkamah agung sebagai lembaga absolute dalam kekuasaan yudikatif..Pasca putusan Mahkamah Konstitusi <a href="http://kepaniteraan.mahkamahagung.go.id/kegiatan/1181-putusan-mk-no-43-puu-xiii-2015-proses-seleksi-hakim-tingkat-pertama-tidak-perlu-melibatkan-ky"> No 43/PUU-XIII/2015</a> tidaklah menjadi penghambat Komisi Yudisial dalam melakukan penegakan kode etik. Bahkan pada sisi lain Komisi Yudisial harus mampu melakukan penerobosan penafsiran bahwa putusan tersebut semata-mata memberikan ruang dan kedudukan Komisi Yudisial untuk merespon upaya kemerdekaan kekuasaan kehakiman yang secara mandiri dan merdeka akan tetapi harus sesuai real nilai-nilai pancasila dan Undang-Undang Dasar Negara Republik Indonesia dengan menempatkan Komisi Yudisial yang nantinya akan menguji idependensi hakim-hakim yang merupakan hasil seleksi dari Mahkamah Agung secara ketat dalam menjalankan tugas dan fungsinya sesuai dengan prinsip-prinsip dasar kode etik yang telah telah dicanangkan sesuai dengan peraturan perundang-undangan yang berlaku.Status of the Judicial Commission as the regulatory system in the sense of justice in Indonesia Sangat system makes for a review of integrity and professional judiciary in Indonesia. Present Problems then after the Constitutional Court ruling No. 43/PUU-XIII/2015 Where hearts Judicial Commission Decision making is NOT Again as parties Yang Participate oversee the recruitment of judges of first instance. Whereas hearts constitutional system if Institution Role and functions of the Judicial Commission shall be limited to make the Supreme Court as the Institute for Judicial power absolute hearts.Post a Constitutional Court decision No. 43/PUU-XIII/2015 does not become an obstacle to the Judicial Commission in enforcing the code of conduct. Even on the other side of the Judicial Commission should be able to make a breakthrough interpretation that the decision merely provides the space and the position of the Judicial Commission to respond to the efforts of the independence of judiciary is independent and free but must be corresponding real values of Pancasila and the Constitution of the Republic Indonesia by placing the Judicial Commission which will examine idependensi judges were selected from the Supreme Court strictly in performing their duties and functions in accordance with the basic principles of the code of conduct that has been implemented in accordance with the legislation in force.

Download Full-text