scholarly journals Pro-Kontra Kewenangan Mahkamah Konstitusi dalam Menguji Undang-Undang yang Mengatur Eksistensinya

2016 ◽  
Vol 12 (4) ◽  
pp. 795
Author(s):  
Tanto Lailam
Keyword(s):  
Rule Of Law ◽  
Government Regulation ◽  
The State ◽  
The Other ◽  
Constitutional Court ◽  
Court Decisions ◽  
Constitutional Rights ◽  
Other Hand ◽  
Rule Breaking

The Pro’s – Con’s of the Constitutional Court in the review of law in a regulated of the authority, since, it was a conflicting of procedural principles between “ius curia novit” with “nemo judex idoneus in propria causa”. Morever, the background by implication of Constitutional Court decisions, sometimes Constitutional Court making a “rule breaking”,  for examples: nullify of some of law if had reduction of  the authority, addition of constitutional authority to review of law before the 1945 Constitution amendment, additional authority to review of Government Regulation in lieu of law, and used non-constitution as a standard in the formal review, and others. On the other hand, the Constitutional Court also sometimes to choose a   legal logic doesn’t precise and anti-accountability principle. The Conflicts of the procedural principles can  be  resolved  by  understanding  philosophy  of  purposes of law (justice value, legal certainly, utility principle), so that, the Court will have been prioritizing to “ius curia novit” principle and it ignored “nemo judex idoneus  in propria causa”principle, it is intended that the enforcement of the constitution (values) and the state of the Indonesian rule of law, as well as for the Court to aims decided of constitutional issues and to aim the protection of constitutional rights.

scholarly journals THE RECOVERY OF CONSTITUTIONAL LOSSES BY THE CONSTITUTIONAL COURT

2020 ◽  
Vol 2 (2) ◽  
pp. 126-139
Author(s):  
Novan Mahendra Pratama
Keyword(s):  
Research Methods ◽  
Research Method ◽  
State Power ◽  
The State ◽  
The Other ◽  
Constitutional Court ◽  
Court Decisions ◽  
Constitutional Rights ◽  
Laws And Regulations

The Constitutional Court's decision does not necessarily lead to the restoration of constitutional rights. This will be interesting to be examined because the state, in this case represented by the Constitutional Court, can only recover the constitutional losses suffered by citizens if it issues a decision. However, there are also citizens who still feel that their losses have not been recovered by the issuance of this decision. Then how can the Constitutional Court recover such constitutional losses by still referring to the constitution and laws and regulations? This research method uses normative research methods. The results of this study indicate that the Constitutional Court decisions do not always lead to the restoration of the constitutional rights of the injured citizens. Then what are the other ways to recover the constitutional losses still experienced by citizens. This constitutional loss really needs to be restored because its existence is guaranteed in the constitution and all branches of state power are obliged to respect it by not committing violations even to the point of loss

scholarly journals Historical Development over Religious Liberty in the Indonesian Constitution

2020 ◽  
Vol 3 (1) ◽  
pp. 65-74
Author(s):  
Mahaarum Kusuma Pertiwi
Keyword(s):  
Legal System ◽  
Historical Development ◽  
The State ◽  
Religious Liberty ◽  
The Other ◽  
Constitutional Amendment ◽  
Court Decisions ◽  
Other Hand ◽  
Political Consensus

This paper finding is the existence of recurring unsettled negotiation between the Islamists and the Nationalists during three important constitutional works in Indonesia (the making of 1945 Constitution; the work of Konstituante to draft a new constitution in 1955-1959; and the constitutional amendment 1999-2002). Such fragile political consensus creates a legal gap in the Indonesian legal system: constitutional guarantee on religious liberty on one hand, and discriminative derivative laws and court decisions in relate to religious liberty on the other hand. This paper argues the legal gap happens because historically, discourse over religious liberty never settled during constitutional debates. It leads to ambiguous constitutional articles on religious liberty such as the seemingly contradicting Article 28 I (1) on absolute rights and Article 28 J (2) on the limitation of rights. The ambiguous constitutional articles give no solid basis for protecting religious liberty, especially for minority, although explicitly Article 29 (2) of the Constitution stating, ‘The State guarantees freedom of every inhabitant to embrace his/ her respective religion and to worship according to his/ her religion and faith as such’. This paper will explain the unsettled negotiations during the making of Pancasila and the Jakarta Charter in 1945; the debate within Konstituante’s work in 1959; and the debate during constitutional amendment in 1999-2002.

En torno a la práctica desaparición de una competencia. El art. 149.1.6 CE y las especialidades procesales autonómicas

2012 ◽  
pp. 103-124
Author(s):  
Miguel Ángel CABELLOS ESPIÉRREZ
Keyword(s):  
Civil Law ◽  
The State ◽  
The Other ◽  
Constitutional Court ◽  
Narrow Line ◽  
Autonomous Communities ◽  
Other Hand ◽  
The One ◽  
Substantive Law

LABURPENA: Konstituzioak, 149.1.6 artikuluan, ez zion atea itxi nahi izan autonomia- erkidegoen parte-hartzeari araudi prozesalaren erregulazioan, eta, berez, Estatuari legegintza prozesalaren gainean eman zion eskumen esklusiboa mugatua da; izan ere, beren zuzenbide substantiboaren berezitasunetatik eratorritako espezialitate prozesalen gaineko eskumena aitortu baitzien, aldi berean, autonomia-erkidegoei. Eskumen hori batez ere zuzenbide zibil propioa duten erkidegoetan erabiltzekoa zen, baina ez haietan bakarrik, ez eta soilik gai honi dagokionean ere. Konstituzio Auzitegiak, baina, hain modu murriztailean jokatu du konstituzio-arau hori interpretatu eta aplikatu behar izan duenean (47/2004 epaia da salbuespen bakarra), non autonomia-erkidegoen espezialitate prozesalen gaineko eskumena ezerezean geratu baita. Artikulu honen asmoa honako hau da: alde batetik, egoera honetara nola heldu garen aztertzea; bestetik, 21/2012 epaia analizatzea, zeinak Konstituzio Auzitegiaren ildo murriztailea berresten duen; eta, azkenik, gaurko egoeran beste hautabide batzuk eskaintzea, autonomia-erkidegoek espezialitate prozesalen gainean daukaten eskumena (haietako batzuk erabiltzen ari direna) desagertzeko zorian dago-eta Konstituzio Auzitegiaren jurisprudentzian. RESUMEN: La Constitución, en su art. 149.1.6, no quiso cerrar la puerta a la intervención de las CCAA en la regulación de la normativa procesal y otorgó al Estado una competencia exclusiva sobre legislación procesal cuya exclusividad es, en realidad, limitada, dada la simultánea atribución a las CCAA de la competencia para dictar las necesarias especialidades procesales derivadas de las particularidades de su derecho sustantivo. Ello debía ser especialmente útil en aquellas comunidades con Derecho civil propio, aunque no solo en estas ni únicamente respecto de este ámbito material. Ocurre sin embargo que el Tribunal Constitucional, en las ocasiones en que ha debido interpretar y aplicar el mencionado precepto constitucional, lo ha hecho de modo tan restrictivo que, con la única y aislada excepción de la STC 47/2004, la competencia autonómica relativa a las especialidades procesales ha quedado reducida a la nada. El propósito de este artículo es, por un lado, el de examinar cómo se ha llegado a este punto; por otro, estudiar el último de los casos relevantes, la STC 21/2012, que confirma la citada línea restrictiva seguida por el Tribunal; y finalmente apuntar algunas alternativas a la situación a la que se ha llegado, en que la competencia de las CCAA en materia de especialidades procesales (que por otra parte algunas están ejerciendo) se halla condenada a la práctica desaparición en la jurisprudencia constitucional. ABSTRACT: The Constitution in section 149.1.16 has not closed the door to the Autonomous Communities intervention in the regulation of the procedural provisions and conferred the State the exclusive power over the procedural legislation albeit its exclusivity is limited by the simultaneous allocation to the Au tonomous Communities of the power to enact the necessary procedural specifities that come from the special features of its substantive law. That should be extremely useful in those Communities with their own Civil law, even though not only in those and not solely regarding this material field. But what happens is that when the Constitutional Court had to interpret and apply the aforementioned constitutional provision, it has done it so narrowly that with the only and sole exception of the Constitutional judgment 47/2004 the power is almost reduced to nothing. The purpose of this article is on the one hand to examine how this is been reached; and on the other hand, to study the last relevant ruling, judgment 21/2012, which confirms the aforementioned narrow line of interpretation followed by the Court; and finally to point at some alternatives to the situation that has been created in which the power of the Autonomous Communities regarding the procedural specificities (and which they are exercising anyway) is doomed to the practical disappearance according to the constitutional caselaw.

scholarly journals Peran Mahkamah Konstitusi Dalam Mewujudkan Negara Hukum Yang Demokratis

2017 ◽  
Vol 13 (25) ◽  
pp. 28 ◽  
Author(s):  
H Erli Salia
Keyword(s):  
Rule Of Law ◽  
The State ◽  
Fundamental Rights ◽  
State Agency ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Democratic Government ◽  
The Rule Of Law ◽  
The Guardian

The Constitutional Court is the state agency that was born after the reform in 1999. Through the changes to the Constitution of 1945, the Constitutional Court is authorized to examine  laws (acts) against the Constitution. In addition there are other powers to protect the fundamental rights relating to the constitutional rights of citizens. As a state agency has the authority of the Constitutional Court, among others, as the supreme interpreter of the constitution in addition to realizing the democratic government, the Constitutional Court to act as the guardian of democracy, protection of constitutional rights of citizens and the protection of human rights.Key words: the rule of law, democracy, constitutional court

scholarly journals KEDUDUKAN ORGANISASI KEMASYARAKATAN ASING DI INDONESIA DI TINJAU DARI PERATURAN PEMERINTAH NOMOR 59 TAHUN 2016

2018 ◽  
Vol 3 (2) ◽  
pp. 198
Author(s):  
Elwidarifa Marwenny ◽  
Engrina Fauzi ◽  
Jelisye Putri Cenery
Keyword(s):  
Human Rights ◽  
Qualitative Method ◽  
Government Regulation ◽  
Community Organization ◽  
Community Organizations ◽  
The State ◽  
The Other ◽  
Human Right ◽  
Other Hand ◽  
The Government

One of the form of applying the value of democratic in Indonesia is accommodate by the regulation of community organization which is concretely regulated in the provisions of article 28 E Paragraph 3 of the 1945 constitution also in the provisions of law number 39 of 1999 on Human Rights. The existence of community organizations does have a great constribution in the implementation of the state, but on the other hand the existence of people raises the pro and contra. The enecment of government regulation number 59 on community organization established by foreign citizens makes the community more worried if the exixtance of community organizations affect the sovereignty of NKRI because they have different ideology with Indonesia. Based on this, it should be discussed about the organizations in Indonesia. The position of foreign social organizatios in Indonesia is reviwed from the government regulation number 59 of 2016 on community organizations established by foreign citizens and the influence of basic organizations for the sovereignty of NKRI. To answer that question, qualitative method is used  as a means to answer the problem by conducting of normative juridical approach which is done by reviewing the law and the literature. Based on this study, it is concluded that the existence of foreign social organizatios in Indonesia in line with  democracy and human right but also politically can treaten NKRI.

scholarly journals AKIBAT HUKUM ATAS PEMBATALAN SURAT KEPUTUSAN BUPATI TENTANG PEMBERHENTIAN KEPALA DESA SUMURBER KECAMATAN PANCENG KABUPATEN GRESIK

2019 ◽  
Vol 3 (1) ◽  
pp. 75-88
Author(s):  
Eksan Eksan ◽  
Ainul Masruroh ◽  
Sholihan Sholihan
Keyword(s):  
Government Regulation ◽  
The State ◽  
The Other ◽  
Other Hand ◽  
Legal Case ◽  
State Administration ◽  
Village Government ◽  
The Village

The agency or the administrative office of the State does not necessarily succeed in carrying out its duties, sometimes the dispute arises due to a decision of the State administration that can cause dissatisfaction. The proposed termination of village chief conducted by the Village consultative Agency is not qualified as a reason to dismiss the head of Sumurber village, Panceng District, Gresik Regency. In addition to the State Administrative Decree/object dispute is contrary to government regulation about the village, also contrary to the regional regulation of Gresik Regency number 12 Year 2006 about the village government. On the other hand, the country's administrative decisions are contrary to good principles of government. Because the State Administrative Decree/object dispute is a state administrative decision contrary to good laws and principles of government. The author uses a method of scripting which provides the solution of legal case ATS that occur. This study analyzed the cancellation of decree of Regent of Gresik No. 141/678/HK/437.12/2013, dated 3 May 2013 concerning the dismissal of the village head of Sumurber, Panceng District, Gresik Regency. The decision of deliberation of the village consultative Agency related to the termination of the village head has been null and void, as a result of the Regent's decision on the termination of Sumurber village chief is irrevocable.

scholarly journals PUTUSAN ULTRA PETITA MAHKAMAH KONSTITUSI DALAM PERKARA PENGUJIAN KONSTITUSIONALITAS UNDANG-UNDANG

Yuridika ◽  
2014 ◽  
Vol 29 (2) ◽  
Author(s):  
Zendy Wulan Ayu W.P ◽  
Haidar Adam
Keyword(s):  
The Other ◽  
Judicial Power ◽  
Constitutional Court ◽  
Court Decisions ◽  
Constitutional Review ◽  
Other Hand ◽  
The Law

This research aimed to analyze the Indonesia constitutional court decisions which contain dissenting opinion regarding the constitutionality of the law. As a part of constitutional court law of procedure, some constitutional judges allowed to give their different opinion against the majority of the judges. In one hand, this action has reflected the independency of the judges cum the independency of the judicial power. On the other hand the dissenting opinion has raised a question concerning the legitimacy of the decision since the decision was not decide unanimously. This research is doctrinal research which means that all the material will be analyzed by using the law, court decisions and law principles.Keywords: dissenting opinion, decision, constitutional review.

The Rule of Law

2017 ◽  
Author(s):  
J. M. Bernstein
Keyword(s):  
Coercive Force ◽  
Rule Of Law ◽  
Necessary Conditions ◽  
The State ◽  
The Other ◽  
The Rule Of Law ◽  
Other Hand ◽  
The One ◽  
Formal Features

This chapter analyzes the concept of rule of law. It examines Gustav Radbruch's theory since his argument against the extremes of Nazi law was a pivotal moment in the re-emergence of antipositivist conceptions of legality. It then elaborates Lon L. Fuller's account of eight constitutive, formal features of law that, he contends, begin to get at the “inner morality of law.” Next, the chapter offers a version of Caesar Beccaria's argument that the formal and procedural elements constituting the rule of law should be conceived as, on the one hand, generating the necessary conditions for relations between the citizen and the state and, on the other hand, among citizens themselves that will be sufficient to free individuals from coercive, force-based relations both among themselves and between themselves and the state.

scholarly journals Perspectives on restricting the exercise of constitutional rights and freedoms in order to ensure national security

2019 ◽  
pp. 35-47
Author(s):  
IONUȚ DUMITRU APACHIȚEI
Keyword(s):  
National Security ◽  
Constitutional Law ◽  
The Other ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Close Correspondence ◽  
Other Hand ◽  
Fundamental Law ◽  
The One

The current study aims at presenting the conditions under which the restriction of the exercise of constitutional rights and freedoms can operate in order to satisfy the measures regarding the protection of national security. One the one hand, the valences of constitutional law of this topic lie on the fact that the adopted measures must be in close correspondence with the exigencies of the Constitution, and on the other hand, the checking of the conditions of adopting specific measures to restrict constitutional rights and freedoms is the prerogative of the Constitutional Court asked to verify the compliance with the provisions of the Fundamental Law.

scholarly journals Old Weimar Meets New Political Economy: Democratic Representation in the Party State

2012 ◽  
Vol 13 (3) ◽  
pp. 237-258
Author(s):  
Emanuel Towfigh
Keyword(s):  
State Theory ◽  
The State ◽  
The Other ◽  
The Political ◽  
Constitutional Theory ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
Other Hand ◽  
Great Tradition ◽  
Party State

One of the prominent questions surrounding Weimar Theory of the State was that of the significance and influence of the political parties within the state. From the perspective of constitutional law, parties were as undesirable as they were an “inescapable” fact of modern statehood. They appeared to be an absolutely necessary consequence of the emancipation of all classes and social strata: Legitimation of state rule was no longer conceivable merely as a natural rule from above; on the other hand, there was no longer a unified bourgeoisie, and it thus seemed impossible for the political whole to be represented by people who felt beholden exclusively to the common weal. The homogeneous “people” had become a heterogeneous “mass.” The parties seemed to be a necessity, on the one hand, for active citizens to articulate themselves in the political system and, on the other hand, for state unity not to be torn apart by the power of a plurality of interests leaning in many different directions. Parties could therefore be conceived of as aprerequisitefor state organisation: The idea of the “party state” was born. One important protagonist in the discussion on the status of parties within the state structure was the constitutional legal scholar Gerhard Leibholz (1901–1982). In Weimar times, he was the most prominent representative of party state theory (Parteienstaatslehre), and as someone who “had somehow fallen between the eras,” he also actively shaped the party state of the Bonn Republic for over twenty years (1951–1971), as a judge at the Federal Constitutional Court (Bundesverfassungsgericht), by significantly influencing legislation on parliamentary, party, and electoral law. His persona was therefore a particularly important bridging link between the Weimar Republic and the Federal Republic of Germany, and even today, his theses are highly topical: “Beyond all eras, Gerhard Leibholz stands for the great tradition of German constitutional theory.”

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