scholarly journals PENEMUAN HUKUM OLEH HAKIM DALAM PRAKTEK HUKUM ACARA DI PERADILAN AGAMA

2013 ◽  
Vol 2 (2) ◽  
pp. 189
Author(s):  
Abdul Manan
Keyword(s):  
Analytical Techniques ◽  
Judicial Power ◽  
Legal Argument ◽  
Court Judge ◽  
Legal Provisions ◽  
The Law ◽  
Law And Justice ◽  
Article 5 ◽  
Religious Courts

The court essentially banned refused to examine, decide a case filed with no legal argument or less clear, but obliged to examine and judge ". Provisions of this chapter gives the sense that as major organs Court judge and as executor of judicial power is obligatory for the Judge to find the law in a case despite legal provisions do not exist or are less clear. Law No. 48 of 2009 Article 5 (1) explains that "Judges shall multiply, follow and understand the values of law and justice that lives within the community. the judges in the religious court in making decisions on matters that should be examined and judged using the technique of taking decisions which include Analytical Techniques, Technical equatable, and techniques syllogism. Keywords: Rechtsvinding, Justice, Law Events, Religious Courts.

scholarly journals Completion of Legal Conflicts in The Implementation of The Decision of the National Sharia Arbitration Board

2020 ◽  
Vol 8 (1) ◽  
pp. 78-86
Author(s):  
Sofyan Al-Hakim ◽  
Muhammad Hasanuddin ◽  
Heris Suhendar
Keyword(s):  
Research Method ◽  
Judicial Power ◽  
District Court ◽  
Legal Research ◽  
Legal Provisions ◽  
Arbitration Board ◽  
Depth Analysis ◽  
The Law ◽  
Islamic Economic ◽  
Religious Courts

The background of the article is the contents of Article 59 paragraph (3) and explanation of paragraph (1) of the Law on Judicial Power. The article authorizes the District Court to implement the decision of the Sharia arbitration body on the resolution of Islamic economic disputes. The article and explanation of the verse contradicts the absolute authority of the Religious Courts regulated in Article 49 letter (i) of the Law on Religious Courts. This shows that, the legislators are not consistent in making laws and regulations, so that it creates legal uncertainty. By applying the normative legal research method to the statute approach and case approach, this article seeks to describe the phenomenon of legal conflicts that occur. From the in-depth analysis it can be concluded that the legal provisions regarding the implementation of the decision of the National Sharia Arbitration Board are regulated in the Arbitration Law, the Judicial Power Act and the Religious Courts Act. The legal substance of the provisions therein enables antinomy or legal conflicts. Antinomy settlement can use the principle of lex specialis derogat legi generali

scholarly journals The Attempt to Human Rights Protection Through Judicial Review in Indonesia

2018 ◽  
Vol 54 ◽  
pp. 02006
Author(s):  
Riris Ardhanariswari ◽  
Muhammad Fauzan ◽  
Ahmad Komari
Keyword(s):  
Human Rights ◽  
State Government ◽  
Judicial Review ◽  
Stable State ◽  
Judicial Power ◽  
Constitutional Court ◽  
Human Rights Protection ◽  
The Law ◽  
Law And Justice ◽  
Parliamentary Supremacy

The Constitutional Court is one of the perpetrators of judicial power, in addition to the Supreme Court as referred to in Article 24 paragraph (2) of the 1945 Constitution. The Constitutional Court is also bound to the general principle of an independent judicial power, free from the influence of other institutions in enforcing law and justice. The Constitutional Court is the first and last level judicial body, or it can be said that it is the only judicial body whose decisions are final and binding. The existence of the Constitutional Court is at the same time to maintain the implementation of a stable state government and is also a correction to the experience of constitutional life in the past caused by multiple interpretations of the constitution. Judicial review towards the constitution is one of the authorities of the Constitutional Court that attracted attention. This shows that there has also been a shift in the doctrine of the parliamentary supremacy towards the doctrine of the supremacy of the constitution. The law was previously inviolable, but now the existence of a law is questionable in its alignment with the Constitution. The authority to examine the Law towards the Constitution is the authority of the Constitutional Court as the guardian of the constitution. This authority is carried out to safeguard the provisions of the Act so that it does not conflict with the constitution and / or impair the constitutional rights of citizens. This shows that the judicial review towards the Constitution carried out by the Constitutional Court is basically also to provide protection for human rights.

TAFSIR INDEPENDENSI KEKUASAAN KEHAKIMAN DALAM PUTUSAN MAHKAMAH KONSTITUSI / INTERPRETATION OF JUDICIAL POWER INDEPENDENCE IN CONSTITUTIONAL COURT DECISIONS

2018 ◽  
Vol 7 (2) ◽  
pp. 279
Author(s):  
Muh. Ridha Hakim
Keyword(s):  
Rule Of Law ◽  
Qualitative Method ◽  
Secondary Data ◽  
Judicial Power ◽  
Constitutional Court ◽  
Court Decisions ◽  
Conceptual Approach ◽  
Judicial Proceedings ◽  
The Law ◽  
Law And Justice

Artikel ini mengkaji mengenai independensi kekuasaan kehakiman yang ditinjau dari Putusan Mahkamah Konstitusi. Independensi kekuasaan kehakiman merupakan keharusan dalam sebuah negara hukum (rechtstaat). Negara  hukum baik dalam konsep Rule of Law ataupun Rechtstaat, menempatkan peradilan yang bebas dan tidak  memihak  (independence and impartiality of judiciary) sebagai salah satu cirinya. Akan tetapi, kemerdekaan tersebut bukanlah tanpa batasan sehingga dapat diterjemahkan dengan seluas-luasnya. Sering kali dalam praktiknya independensi didalilkan untuk berlindung atas suatu perbuatan yang tidak dapat dipertanggungjawabkan. Oleh karenanya, perlu dilakukan penggalian makna independensi kekuasaan kehakiman sebagaimana amanat Pasal 24 ayat (1) Undang-Undang Dasar 1945. Pasal 24 ayat (1) Undang-Undang Dasar 1945 menyatakan bahwa “kekuasaan kehakiman merupakan kekuasaan yang merdeka untuk menyelenggarakan peradilan guna menegakkan hukum dan keadilan”. Oleh karenanya, pertimbangan dari Mahkamah Konstitusi terkait putusan-putusan yang menjadikan Pasal 24 ayat (1) Undang-Undang Dasar 1945 sebagai batu uji dalam pengujian undang-undang layak untuk dikaji dan diangkat menjadi tafsiran mengenai makna independensi kekuasaan kehakiman. Tulisan ini menggali pandangan hakim dalam putusan Mahkamah Konstitusi yang memuat pertimbangan mengenai independensi kekuasaan kehakiman. Penulisan menggunakan metode yuridis normatif melalui pendekatan konseptual (conceptual approach) dan pendekatan kasus (case approach). Tulisan ini menggunakan data sekunder dengan bahan hukum primernya adalah Putusan Mahkamah Konstitusi. Data dianalisis menggunakan metode kualitatif.This article examines the independence of judiciary by reviewing the Constitutional Court Decisions. Independence of judiciary is an absolute fact in a state of law (rechtstaat). A state of law, in the concept of Rule of Law or Rechtstaat, lists independence and impartiality of judiciary as one of its characteristics. However,  independence is not as free as everybody can freely interpret the law. Often, in practice, independence is postulated so as to provide protection from an act that cannot be accounted for. Therefore, it is necessary to delve into the meaning of judicial power independency as mandated by Article 24 paragraph (1) of the 1945 Constitution. Article 24 paragraph (1) of the 1945 Constitution states that “judicial power is an independent power to administer judicial proceedings to enforce the law and justice”. For that reason, it is reasonable that the Constitutional Court’s reasoning in relation to the decisions that render Article 24 paragraph (1) of the 1945 Constitution a touchstone in the judicial review of the laws be investigated and regarded as an interpretation of the meaning of judicial power independence. This paper studies the views of the judges in the Constitutional Court decisions that contain the court’s reasoning regarding the judicial power independence. This paper was written by employing a juridical-normative method through a conceptual approach and a case approach. This paper uses secondary data with the Constitutional Court Decisions as the primary legal materials. The data were analyzed using a qualitative method.

scholarly journals Asas Peradilan Sederhana, Cepat, dan Biaya Ringan dalam Gugatan Perceraian di Pengadilan Agama Pamekasan: kajian Putusan Nomor 0862/Pdt.G/2015/PA. Pmk

2019 ◽  
Vol 6 (1) ◽  
pp. 77-96
Author(s):  
Sofian Syaiful Rizal
Keyword(s):  
Research Method ◽  
Low Cost ◽  
Judicial Power ◽  
Court Decisions ◽  
Legal Basis ◽  
State Legislation ◽  
Legal Foundation ◽  
Principle Of Justice ◽  
Article 5 ◽  
Religious Courts

This study aims to analyze court decisions, in divorce lawsuits that use simple, fast and low-cost judicial principles at the Pamekasan Religious Court. The problems that arise from this study are, First, what is the legal foundation of judge in resolving divorce claims in religious courts using simple, fast and low-cost judicial principles? Second, what are the legal considerations of religious courts in examining, hearing, and deciding divorce cases in religious courts? The research method uses a normative juridical approach. The results of the study show that: First, the principle of justice is simple, fast, and low cost refers to Law No. 4 of 2004 concerning Judicial Power article 4 paragraph (2), and article 5 paragraph (2). Also contained in Law No. 7 of 1989 in article 57 paragraph (3), as well as in article 58 paragraph (2). Second: The legal considerations of the extreme religious court in rejecting a divorce lawsuit in a religious court are in accordance with the legal basis of state legislation and syar'i law. Considering, based on the testimonies of the witnesses, that the dispute between the plaintiff and the defendant only happened once, so that it did not meet the criteria of article 19 letter C, namely continuous disputes and arguments so that there was no hope of living in harmony again. Keywords: Judicial Principles, Divorce Lawsuit, Judge's Decision

scholarly journals Juridical Review of the Legal Imposition of the Defendant in the Sued Divorce Case as the Implementation of Just PERMA No. 3 of 2017

2020 ◽  
Vol 1 (2) ◽  
pp. 133
Author(s):  
Trubus Wahyudi ◽  
Masrur Ridwan
Keyword(s):  
Law Enforcement ◽  
Child Support ◽  
Islamic Law ◽  
Literature Study ◽  
High Court ◽  
Central Java ◽  
Education And Health ◽  
The Law ◽  
Law And Justice ◽  
Religious Courts

The law enforcement paradigm regarding the legal imposition of the Defendant in the case of sued divorce lawsuit as the implementation of Perma No. 3 of 2017, the factor of law protection and justice for women and children's rights due to the divorce of their parents in the Religious Court is essential as the upholding of the rule of law and justice. Judges in adjudicating women's cases against the law must adhere to the following principles: respect for human dignity, non-discrimination, gender equality, equality before the law, justice, benefit and legal certainty. The process of adjudicating a divorce case, even if the initiative of the case is from the woman, her rights must be protected by the former wife, as well as the rights of her child. Normatively, the legal arrangements for the divorce case are Article 73 to Article 83 of Law Number 7 of 1989 Jonto Article 114 to Article 156 Compilation of Islamic Law, and as the initiator of the filing of the divorce case is the wife as the plaintiff. This study uses a sample of several decision objects in certain Religious Courts in the jurisdiction of the High Court of Religion, Central Java, through a series of research methods with a sociological juridical approach or social legal research, and data collection techniques through interviews and literature study. The implementation of Perma No. 3 of 2017 regarding the legal imposition of the Defendant in the case of sued divorce lawsuit in the Religious Court can be formulated in the form of a dictum of the Judge's decision "Condemnatur" as a court product that contains the rights of the former wife as the Plaintiff, as well as the rights of child support, fees sustainability of education and health that is just.

scholarly journals Politik Hukum Kekuasaan Kehakiman Di Indonesia

2020 ◽  
Vol 4 (2) ◽  
Author(s):  
Wira Paskah Withyanti
Keyword(s):  
Judicial Power ◽  
Constitutional Court ◽  
Independent State ◽  
State Laws ◽  
Political Dynamics ◽  
Independent Judiciary ◽  
Democratic State ◽  
The Law ◽  
Law And Justice ◽  
The Republic

Along with the continued development of the political dynamics that occurred during the founding of the Republic of Indonesia has a significant impact on the survival and growth of judicial power. Initial ideas of placing the judicial authorities and the independent judiciary free from interference by other branches of power have a long history. In carrying out the duties of a judge must be able to manage skills and as an upholder of justice professional, kind and reliable. Since this is an important prerequisite. Because of the ebb and flow of political dynamics in Indonesia that today is a democratic state. Where Indonesia recently found his form when the reform introduced in 1998. A new independent judicial power can be realized in a more noticeable when the Suharto regime fell, and then transforms the Law No. 40 of 1970, and then followed by a change to the provisions of Article 24 of the Constitution of 1945. Political law is closely related to the judicial authorities and the judiciary is independent state authority to conduct judiciary, enforcing the law, and justice based on Pancasila, for the implementation of state laws in the Republic of Indonesia. Implementation of judicial power carried by a Supreme Court and judicial bodies underneath, which is the general courts, religious courts, military courts, administrative courts, and a Constitutional Court. Judicial power in Indonesia is an independent and independent authority charged with adjudicating and enforcing law and justice based on Pancasila and the 1945 Constitution.

scholarly journals The Role of Judges in Dealing with Community Development

2020 ◽  
Vol 2 (2) ◽  
pp. 195
Author(s):  
Maulana Hasanudin
Keyword(s):  
Law Enforcement ◽  
Community Development ◽  
Legal System ◽  
Law Enforcement Officers ◽  
The State ◽  
Judicial Power ◽  
The Law ◽  
Law And Justice ◽  
Important Structure

<p>The purpose of this paper is to determine the role of the judge in facing the development of society. Judges are part of the important structure of the judicial power branch in Indonesia. Judicial power is an independent power to administer justice in order to uphold law and justice. Judges are given the power to judge. Judges have an important role as law enforcement officers in the law enforcement process in Indonesia, so they must pay attention to legal objectives. The role of the judge has consequences for the responsibility of the judge which is very heavy, where the judge has responsibility to one God, to the nation and state, to himself, to the law, to the parties and to society. Judges and society are elements that cannot be separated in a legal system. The judge is a product of the society and culture where he comes from and is. The function of the judiciary is to decide disputes between individuals and individuals, individuals and communities, even individuals or society and the state; forming or making a policy or policy.</p><p align="center">[]</p><p><em>Tujuan penulisan ini adalah mengetahui peranan peranan hakim dalam menghadapi perkembangan masyarakat. Hakim merupakan bagian dari struktur penting cabang kekuasaan kehakiman di Indonesia. Kekuasaan Kehakiman merupakan kekuasaan yang merdeka untuk menyelenggarakan peradilan guna menegakkan hukum dan keadilan. Hakim diberi wewenang untuk mengadili. Hakim memiliki peranan penting sebagai aparat penegak hukum dalam proses penegakan hukum di Indonesia, sehingga harus memperhatikan tujuan hukum. Peranan hakim memiliki konsekuensi terhadap pertanggungjawaban hakim yang sangat berat, dimana hakim memiliki tanggung jawab terhadap tuhan yang maha esa, terhadap bangsa dan negara, terhadap diri sendiri, terhadap hukum, terhadap para pihak dan terhadap mayarakat. Hakim dan masyarakat merupakan unsur yang tidak bisa dilepaskan dalam suatu sistem hukum. Hakim sebagai produk masyarakat dan budaya tempat dia berasal dan berada. Fungsi kehakiman adalah memutus sengketa antara individu dengan individu, individu dengan masyarakat, bahkan individu atau masyarakat dengan negara; membentuk atau membuat policy atau kebijakan.</em></p>

scholarly journals The Ideological Study of Judicials From The Formal Centralistis to The Legal Pluralism (Analysis of the Meaning of Judge on Article 5 paragraph (1) of Law Number 48 Year 2009 on Judicial Power)

2018 ◽  
Vol 5 (2) ◽  
Author(s):  
Rina Yulianti ◽  
Mufarrijul Ikhwan
Keyword(s):  
Legal Pluralism ◽  
The State ◽  
Judicial Power ◽  
Legal Studies ◽  
The Law ◽  
Article 5

Article 5 (1) of Law Number 48 Year 2009 concerning Judicial Power becomes ineffective if acentralistic ideology still working  in view of the judge. The type of study used in this researchwas a non-doctrinal legal studies (sociolegal research). Research conducted in the DistrictCourt and Religious Court in Madura based on the judges perception by meaning of article 5paragraph (1) law 48/2009 and justices consideration to verdict making process. The resultsshowing the judges majority interpret the Article 5, paragraph 1 Law 28/2009 to legaldiscovery (rechtsvinding) as an efforts if a legal vacuum, otherwise the judges did notinterpret used living law when there are legal gaps. Thus showing domination of the state lawover the law that lives in society. DOI: 10.15408/jch.v5i2.4190

scholarly journals EFEKTIVITAS SISTEM PERADILAN SEDERHANA, CEPAT, DAN BIAYA RINGAN DI LINGKUNGAN PERADILAN UMUM

2008 ◽  
Vol 8 (1) ◽  
Author(s):  
Pramono Sukolegowo
Keyword(s):  
Law Enforcement ◽  
Judicial Power ◽  
The Law ◽  
Article 5

Article 5 sentence ( 2) Law No. 4 Year 2004 concerning Judicial Power stated that the court help all searchers of justice and overcoming all barricade and resistance to reached the simple, quick, and light expense jurisdiction, so the system of judicature can be effective and efficient. There are some factors that influence the function of law in the society or make effectiveness of the law enforcement which are: substance of law, law enforcement, facility, and also society factor that the law environment applied. Keyword: Simple, quick, and Light Expense Jurisdiction

scholarly journals Progressivity of Judges in Domestic Violence Disputes Settlement in The Case of Divorce in The Religious Court

2018 ◽  
Vol 2 (1) ◽  
pp. 1
Author(s):  
Nita Triana
Keyword(s):  
Domestic Violence ◽  
Islamic Law ◽  
Descriptive Analysis ◽  
Religious Texts ◽  
Court Judge ◽  
Holistic Understanding ◽  
The Law ◽  
One Year ◽  
The Right ◽  
Religious Courts

This study aims to describe and analyze the Judge Progressiveness in the case of a �divorce �related �to domestic violence. The principle of law governing civil judges is passive, in reality this principle creates difficulties for women (wives) victims of domestic violence to achieve justice. The research method used is �non-doctrinal tradition with a socio-legal approach, and qualitative descriptive analysis. The results of the study illustrate. Religious Courts Judges as one of the law enforcers are very potential to seek justice for victims of domestic violence, the majority of whom are women, because many cases of domestic violence ended in divorce cases in the Religious Courts. But the consideration of the religious Court Judge in deciding the case of a divorce petition �is not yet progressive, the Judge still adheres to the principle of law, that the Civil Judge is passive. So that when the Plaintiff (Wife) does not demand income and compensation from her husband. The Plaintiff (Wife) as a victim of domestic violence will not get a living idah, mut'ah, maskan, kiswah and any compensation from the Defendant (Husband). Religious Court Judges have not yet explored other relevant legislation, including progressive religious texts that favor women as victims of domestic violence to strengthen the building of their arguments. Whereas in the case of divorce by talak, the Judge views the law in book in his legal considerations �by giving protection to the wife, namely by giving the wife the right to earn a living Idah, Mutah (a living for one year to entertain the wife divorced by her husband), maskan and kiswah, according with what is stipulated in the Marriage Law and the Compilation of Islamic Law. The paradigm of the operation of the Judge in a country with a pluralistic culture such as Indonesia, it's time to change to a more progressive direction, Judge is no longer limited to the existence of a mouth that sounds the sentence of the law ( le judge est uniquenment la bouche qui pronance le most de lois) Judge also not tools designed to be logical and work mechanically, but whole people who have sensitivity to humanitarian and social concerns. Progressive judges learn and are good at making interpretations that are not literal (connotative), and have a high sense of empathy to be able to catch social norms that contextually support each prescription of the Act. The holistic understanding of the judges has the potential to provide justice for women victims of domestic violence.

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