scholarly journals Inconsistent Constitutional Court Decisions Resulting in Uncertainty Regarding the Legal Dispute on Regional Head Election Results in Indonesia

Lentera Hukum ◽  
2019 ◽  
Vol 6 (2) ◽  
pp. 317
Author(s):  
Saut Parulian Manurung
Keyword(s):  
The Other ◽  
Constitutional Court ◽  
Court Decisions ◽  
Regional Government ◽  
Judicial Activism ◽  
Constitutional Interpretation ◽  
Legal Certainty ◽  
Election Results ◽  
Sense Of Justice ◽  
The Impact

In Indonesia, the Constitutional Court is the sole interpreter and guardian of the constitution and the decision made by this Court is expected to meet a sense of justice, utility, and legal certainty. This paper argues that there is a contradiction between two decisions ruled by the Court resulted in inconsistent constitutional interpretations. Such inconsistency can be referred to the decision of the Constitutional Court Number 072-073/PUU-II/2004 declaring the Constitutional Court to have the power to adjudicate disputes over the results of regional head elections, while on the other hand, the decision of the Constitutional Court Number 97/PUU-XI/2013 ruled this institution no longer to adjudicate disputes over the results of regional head elections by revoking Article 236C of the revised Regional Government Act No. 12/2008. In doing so, this paper analyzes the impact of such contradictory decisions on uncertainty in the legal dispute regarding regional head election results. This paper concludes that such inconsistency was caused by the application of two different approaches: the first decision applied judicial activism and the latter considered judicial restraint. Keywords: Constitutional Interpretation, Judicial Restraint, Judicial Activism.

scholarly journals Initiating Payment of Trafficking Restitution from a Victims Perspective

2021 ◽  
Vol 23 (1) ◽  
pp. 101-115
Author(s):  
Rina Melati Sitompul ◽  
Andi Maysarah
Keyword(s):  
Restorative Justice ◽  
Court Decision ◽  
Court Decisions ◽  
Thought Process ◽  
Legal Certainty ◽  
Perpetrators And Victims ◽  
Sense Of Justice ◽  
The Impact ◽  
Compensation Payments

The objective of this study was to offer policy concept ideas in fulfilling restitution for the victims in accordance with the required attainment of justice. Restitution related to the payment of costs charged to the person based on a court decision that has permanent legally enforceable for the costs suffered by the victim or heir. This study used a normative method using a statutory approach and a case approach. From the three court decisions and one trafficking case in the constabulary, the victim's comprehension of the legal handling experienced is sufficient to accommodate the victim's wishes in obtaining victim's rights. Conclusions are drawn through an inductive to deductive thought process. Of the three decisions reviewed, it proved that the application of restitution payments was not able to fulfill a sense of justice for the victim. In fact, in practice, the fulfillment of compensation payments is in the non-penal space, from the perspective of victim recognition, it is sufficient to accommodate their wishes and hopes for the fulfillment of the expected restitution rights. In order to provide legal certainty for victims of the fulfillment of restitution rights, a legal breakthrough is required. The diversion method as a confirmation of ensuring the payment of the victim's restitution right is an offer. The concept of diversion can be carried out with the limitation of the criteria for the impact experienced by the victim, and the legality of legality is determined through a court decision or decision, as legal achievement through restorative justice is able to restore conflicts from perpetrators and victims.

scholarly journals MODEL PENYELESAIAN PERSELISIHAN PARTAI POLITIK SECARA INTERNAL MAUPUN EKSTERNAL (The Model of Political Party Dispute Settlement Internally and Externally)

2016 ◽  
Vol 5 (1) ◽  
pp. 35
Author(s):  
Tri Cahya Indra Permana
Keyword(s):  
Political Parties ◽  
Supreme Court ◽  
Political Party ◽  
Dispute Settlement ◽  
The Other ◽  
District Court ◽  
Constitutional Court ◽  
Legal Certainty ◽  
The Supreme Court ◽  
Sense Of Justice

Undang-Undang Parpol mengatur bahwa perselisihan Parpol diselesaikan secara internal oleh Mahkamah Partai atau sebutan lain daripada itu dan secara eksternal oleh Pengadilan Negeri dan Mahkamah Agung. Substansi perselisihan yang final dan mengikat di Mahkamah Partai adalah perselisihan kepengurusan, selebihnya dapat diajukan upaya hukum ke Pengadilan Negeri dan Mahkamah Agung. Di dalam praktek, pengaturan tersebut telah menjauhkan dari rasa keadilan, kepastian hukum dan kemanfaatan, oleh karenanya sebaiknya direvisi yang mana perselisihan PAW, pelanggaran terhadap hak anggota partai politik, penyalahgunaan wewenang,  pertanggungjawaban keuangan, dan atau keberatan terhadap keputusan partai politik (termasuk keputusan untuk tidak memutuskan terhadap sesuatu hal) final dan mengikat dengan Putusan MPP. Sedangkan perselisihan kepengurusan dapat diajukan upaya hukum ke Mahkamah Konstitusi. Political parties act stipulates that a political party dispute resolved internally by the Mahkamah Partai or other designation of that and externally resolved by the District Court and the Supreme Court. The dispute substance in Mahkamah Partai which is final and binding is about organization dispute, the other can be settled in District Court and the Supreme Court. In practice, that arrangement makes the decision apart from the sense of justice, legal certainty and utility. Therefore, these rules should be revised so that the regulation of PAW, violations of the rights of members of political parties, abuse of authority, financial liability, or an objection to the decision of political parties (including the decision not to decide on something) is final and binding through Mahkamah Partai decision. While the organization disputes can be submitted to the Constitutional Court for legal action.

scholarly journals Evaluasi Pilkada Pelaksanaan Pilkada Serentak Tahun 2015

2016 ◽  
Vol 1 (2) ◽  
pp. 196
Author(s):  
Pangi Syarwi Chaniago
Keyword(s):  
House Of Representatives ◽  
Qualitative Method ◽  
Constitutional Court ◽  
Regional Government ◽  
Government Budget ◽  
Quality Of Democracy ◽  
Direct Election ◽  
Election Results ◽  
Sense Of Justice

<p>This study was carried out to evaluate the enforcement of the first direct district heads election in 2015, in order to promote the quality of democracy. This study applied qualitative method. There were several findings on this study; (1) direct district heads election has not been efficient yet; (2) direct district heads election has not been able to promote political participation; (3) direct district heads election has not been able to shut off money politic; (4) recruitment the election of district head candidates has not been transparant; (5) financing of direct election was not charged (appropriate) to Regional Government Budget; (6) Constitutional Court refused to adjudicate the dispute of election results if the margin of ballot more than 2%, it broke sense of justice; (7) the phenomenon of the emergence of a single candidate for district heads due to regulations, the must withdraw from candidacy for they were civil servants, military/police, House of Representatives, Regional Representative Board and Regional House of Representatives.</p>

scholarly journals Dimensi Judicial Activism dalam Putusan Mahkamah Konstitusi

2016 ◽  
Vol 13 (2) ◽  
pp. 406
Author(s):  
Pan Mohamad Faiz
Keyword(s):  
Decision Making ◽  
Decision Making Process ◽  
Constitutional Court ◽  
Court Decisions ◽  
Constitutional Rights ◽  
Judicial Activism ◽  
Constitutional Review ◽  
Rights Protection ◽  
Strategic Role ◽  
Substantive Justice

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.

scholarly journals Tafsir Wewenang Seponering Jaksa Agung Pasca Putusan Mahkamah Konstitusi Nomor 29/PUU-XIV/2016

2021 ◽  
Vol 4 (2) ◽  
Author(s):  
Ilham Dwi Rafiqi
Keyword(s):  
Public Interest ◽  
Attorney General ◽  
State Power ◽  
Constitutional Court ◽  
Court Decisions ◽  
Legal Certainty ◽  
The Public ◽  
Legal Implications ◽  
The Republic ◽  
Definition Of

The affirmation of the attorney general's authority in the Elucidation of Article 35 letter C of the Indonesian Prosecutor's Law after the decision of the Constitutional Court Number 29/PUU-XIV/2016 still leaves problems and has the potential to cause new legal problems. This research will look at and analyze how the authority of the Attorney General after the decision is as well as how the concept of an ideal arrangement that ensures legal certainty. This research uses normative juridical research with a statutory approach and case studies which in this case are court decisions. The results showed that after Constitutional Court decision, there was a change in the meaning of the Elucidation of Article 35 letter c of the Republic of Indonesia Prosecutor's Law. Based on the results of these interpretations and decisions, the legal implications that followed were related to the conditions for setting aside cases in the public interest, namely in setting aside cases in the public interest, the Attorney General was required to 'require' first to pay attention to suggestions and opinions from state power agencies that have relationship with the problem. The concept of an ideal arrangement that can guarantee legal certainty as an indicator to measure and assess the implementation of the Attorney General's obligations can be done by clarifying the definition of "state power agencies" for which advice and opinions are requested and making criteria for the term "public interest".

scholarly journals Legal Pollution of Dispute Settlement Results of Regional Head Selection Realizing the Election Justice

2021 ◽  
Vol 04 (05) ◽  
Author(s):  
Gita Santika Ramadhani, Suteki ◽  
Keyword(s):  
Dispute Resolution ◽  
Government Regulation ◽  
Dispute Settlement ◽  
Constitutional Court ◽  
The Supreme Court ◽  
Election Results ◽  
Law And Justice ◽  
The Government ◽  
Dispute Resolution Mechanism ◽  
Sense Of Justice

The implementation of direct regional head elections in the regions often raises disputes regarding the determination of the results of the vote. Efforts made by candidates who are dissatisfied with this determination are to submit a cancellation to the judicial institution. The update on the system for resolving the election results was carried out by the government to overcome this problem, namely the Government Regulation in Lieu of Law No. 1 of 2014. Problems discussed in this study include: how the dispute resolution mechanism was issued before the regulation, what updates are contained in the regulation how to achieve effective and fair election outcome dispute resolution. This study is a normative legal research that is descriptive in nature using a legal and analytical approach. Based on the results of the study, it can be concluded that the fundamental renewal lies with the institution authorized to handle, namely from the Constitutional Court to the High Court appointed by the Supreme Court. The author recommends that the renewal must be supported by technical regulations to ensure effectiveness and fulfill a sense of justice. Based on this research, the results show that the dynamics of the shifting of dispute resolution authority over the election results are influenced by the decision of the MK opened legally policy and the background of certain events. Namely: the problem of bribery that ensnares the judge, decisions that are considered controversial, case accumulation, and unpreparedness of institutional structure and infrastructure. Regarding the threshold requirements as a condition for receiving a dispute over a dispute over the results of a regional election, it has not yet supported the fulfillment of electoral / election justice. Because it has the potential to ignore aspects of substantive justice, mainly because it does not make the facts of the violations structured, systematic and massive (TSM) as a variable in examining cases. This neglect is not in line with one of the universally adopted principles of law and justice, which states that no one can benefit from irregularities and violations committed by himself and no one may be harmed by irregularities and violations committed by others (nullus / nemo commodum capere potes de injuria sua propria).

scholarly journals Allocations Follow Form: The Impact of Federal Structure on Association PACs

1995 ◽  
Vol 15 ◽  
pp. 481-490
Author(s):  
Frank L. Davis
Keyword(s):  
Good Deal ◽  
Organizational Structures ◽  
The Other ◽  
Election Results ◽  
The Impact ◽  
Federal Structure

Researchers have found that the leaders of PACs serving associations with federated organizational structures are under pressure to surrender a good deal of control over allocations to their grassroots fund raisers. As a result, these PACs expend a larger proportion of their allocations to assist the election efforts of ideologically congenial candidates, and a smaller proportion to attain access to likely election victors. This finding, in turn, prompts new questions. This paper addresses some of these. The most important concerns the degree to which association PACs’ commitment to electing ideological allies is the result of sponsors’ federated structures. Results o f this analysis indicate that association PACs’ distinctive commitment to influencing elections stems exclusively from federated associations. The association PAC category includes two distinct groups with vastly different tactical orientations. Pacs in one group, i.e., those serving federated associations, are committed to influencing election results while PACs in the other group, consisting o f those serving nonfederated associations, are dedicated to securing access to election victors.

scholarly journals PERGESERAN NEGARA HUKUM KE ‘NEGARA HIMBAUAN’: MENAKAR DAMPAK REGULASI PENANGANAN COVID-19 TERHADAP PEREKONOMIAN DAN KEUANGAN INDONESIA

2020 ◽  
Vol 3 (2) ◽  
pp. 214-228
Author(s):  
Yafet Y W Rissy
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Large Scale ◽  
Financial Sector ◽  
The Other ◽  
Legal Certainty ◽  
The Future ◽  
Sector Analysis ◽  
Legal Uncertainty ◽  
The Impact

AbstractThis article discusses the shifting phenomenon from rule of law to ‘rule of persuasion’ by analysing regulations concerning Covid-19 mitigation through large-scale social restrictions (PSBB) and their impact on Indonesian economy and financial sector. Analysis of PSBB regulations shows that the regulations do not have criminal and law enforcement provisions that could lead legal uncertainty. PSBB regulations are simply a persuasion model. This has led to the shifting from rule of law to ‘law rule of persuasion’. As a result, on one hand, law enforcement related to PSBB regulations would not be effective and could make the Covid-19 pandemic prolonged, and on the other hand, legal uncertainty itself as well as the Covid-19 pandemic would have serious implications for Indonesian economy and financial sector. It is recommended that in the future, any regulations, especially at the level of statutes (acts), should seriously consider the establishment of legal certainty through criminal provisions and law enforcement and anticipate properly the impact such regulations and Covid-19 on Indonesian economy and financial sector.Keywords: legal uncertainty; rule of law; ‘rule of persuasion’AbstrakArtikel ini membahas fenomena pergeseran negara ke ‘negara himbauan’ dengan melakukan analisis terhadap regulasi terkait penangangan Covid-19 melalui pembatasan sosial berskala besar (PSBB) dan dampaknya terhadap keuangan dan perekonomian Indonesia. Analisis terhadap regulasi PSBB menunjukan bahwa regulasi tidak memiliki ketentuan pidana dan aspek penegakan hukumnya yang dapat menimbulkan ketidakpastian hukum. Regulasi PSBB sekedar merupakan model himbauan yang telah menegaskan adanya fenomena pergeseran dari negara hukum ke ‘negara himbauan’. Akibatnya, di satu sisi, penegakan hukum terhadap regulasi PSBB tidak akan berjalan efektif dan bisa membuat pandemi Covid-19 berkepanjangan, dan di sisi lainnya, ketidakpastian hukum sebagaimana juga pandemic Covid-19 akan memiliki implikasi serius bagi perekonomian dan keuangan Indonesia. Direkomendasikan agar kedepannya, regulasi apapun, utamanya di tingkat undang-undang, harus secara sungguh memperhatikan aspek kepastian hukum melalui pengaturan dalam ketentuan pidana dan penegakan hukumnya dan mengantisipasi secara tepat dampak regulasi dan Covid-19 bagi perekonomian dan keuangan Indonesia. Kata kunci: ketidakpastian hukum; negara hukum; ‘negara himbauan’ 

Which Kind of Discretion in Constitutional Adjudication? A Discussion of Mher Arshakyan's The Impact of Legal Systems on Constitutional Interpretation: A Comparative Analysis: The U.S. Supreme Court and the German Federal Constitutional Court

2013 ◽  
Vol 14 (8) ◽  
pp. 1337-1344
Author(s):  
Federico José Arena
Keyword(s):  
Comparative Analysis ◽  
Supreme Court ◽  
Constitutional Court ◽  
Constitutional Interpretation ◽  
Legal Systems ◽  
Federal Constitutional ◽  
The Impact ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional ◽  
The U.S

In his paper The Impact of Legal Systems on Constitutional Interpretation: A Comparative Analysis: The U.S. Supreme Court and the German Federal Constitutional Court, Arshakyan carries out an interesting and detailed comparison between American and German constitutional courts by individualizing the properties shared by both courts and identifying the differences.

scholarly journals El Tribunal Constitucional, un balance de cuarenta años // The Constitutional Court, a balance of forty years

2018 ◽  
Vol 1 (101) ◽  
pp. 631
Author(s):  
Marc Carrillo
Keyword(s):  
Legal Protection ◽  
Political Influence ◽  
Fundamental Rights ◽  
The Other ◽  
Constitutional Court ◽  
Constitutional Interpretation ◽  
Institutional Prestige ◽  
Other Hand ◽  
The Law ◽  
Objective Meaning

Resumen:La previsión de la jurisdicción constitucional en la Constitución de 1978 ha sido un instrumento que ha reforzado su condición de norma jurídica. El indudable prestigio institucional del Tribunal Constitucional adquirido en los primeros años se ha visto reducido posteriormente por la influencia política en su composición y funcionamiento. La interpretación constitucional forma parte de la Teoría de la Constitución y los criterios hermenéuticos del empleados por el Tribunal han tenido una notable influencia en la jurisdicción ordinaria. Por otra parte, el sentido objetivo y las nuevas reglas sobre admisión del recurso individual (amparo), han permitido que el Tribunal pueda ejercer con mayor eficacia el juicio sobre la ley del Parlamento. Por otra parte, su función de garantía de losderechos fundamentales no puede ser concebida al margen del sistemaeuropeo de jurisdicción multinivel. Abstract:The provision of constitutional jurisdiction in the 1978 Constitution has been an instrument that has reinforced its status as a legal norm. The undoubted institutional prestige of the Constitutional Court acquired in the first years has been subsequently reduced by political influence on its composition and functioning. The constitutional interpretation forms part of the Theory of the Constitution and the hermeneutical criteria of the employees by the Court have had a notable influence in the ordinary jurisdiction. On the other hand, the objective meaning and the new rules on admission of the appeal for Constitutional rigth’s legal protection (amparo), has allowed the Court to exercise more effectively the judgment on the law of Parliament. On the other hand, its function of guaranteeing fundamental rights can not be conceived outside the European system of multilevel jurisdiction. Summary:1. The constitutional justice and the Constitutional Court. 2. The constitutional interpretation. 3. The control of constitutionality of the law. 4.-The objective meaning of the appeal for Constitutional rigth’s legal protection (amparo). 5. The conflicts of competences: the constitutional jurisdiction and the ordinary jurisdiction. 6. The sentence of the Constitutional Court and the Dissenting vote’s function. 

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