PENEMUAN HUKUM HAKIM MAHKAMAH KONSTITUSI DALAM PUTUSAN MAHKAMAH KONSTITUSI NOMOR 21/PUU-XII/2014.MK KASUS PROYEK BIOMEDIASI PT.CHEVRON BACHTIAR ABDUL FATAH

Judicial authority in Indonesia is carried out by a Supreme Court and the Constitutional Court which has the authority to examine laws against the 1945 Constitution of the Republic of Indonesia and decide on the authority dispute of state institutions whose authority is granted by the 1945 Constitution of the Republic of Indonesia. The Constitutional Court in examining the Law against the 1945 Constitution became a polemic related to the prejudicial object which was finally answered through the decision of the Constitutional Court (MK) number 21 / PUU-XII / 2014. The Constitutional Court granted part of the application for corruption convictions in the case of PT Chevron Bachtiar's Abdul Fatah biomediation project, one of which examined the prejudicial object provisions which were polemic, especially after the South Jakarta District Court's prejudicial has canceled the status of suspect Commissioner Budi Gunawan (BG) by the KPK. This study is a legal research using a normative juridical approach and descriptive analytical research specifications. The data used in this study are secondary data consisting of primary, secondary and tertiary legal materials. Data obtained through library studies and field research in the form of legislation, books, journals, and authoritative electronic media. The results of this study are 2 (two) explanations, namely First, Constitutional Court Judges have made legal inventions by providing interpretations and limitations on what can be the object of prejudicial in criminal procedural law by testing it against the constitution and seeing whether the KUHAP Articles tested are contradictory with constitutional rights. Secondly, the Constitutional Court uses several interactive techniques used by member judges in decision number 21 / PUU-XII / 2014. In the joint decision, the judges used Authentic, Systematic, Grammatical, Historical, Extensively and sociological interpretation techniques. This can be seen in the decision of point one stating a phrase which means interpreting the law using grammatical techniques

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Konstitusionalitas Ancaman Pidana Terhadap Kejari (Penetapan Status Barang Sitaan dan Prekursor Narkotika)

Wajah Hukum ◽

10.33087/wjh.v5i2.540 ◽

2021 ◽

Vol 5 (2) ◽

pp. 481

Author(s):

Emir Ardiansyah ◽

Ulya Kencana ◽

Romli SA

Keyword(s):

Rule Of Law ◽

Secondary Data ◽

The State ◽

Constitutional Rights ◽

The Rule Of Law ◽

Legal Principles ◽

Role Of The State ◽

The Status ◽

The Republic

Studies on the constitutionality of criminal threats against the Attorney General's Office (Head of the State Prosecutor's Office) in determining the status of confiscated narcotics and narcotic precursors, based on the Law of the Republic of Indonesia Number 35 of 2009 concerning Narcotics, it is very necessary to do so. The regulation has an over-criminalization nuance that is detrimental to the constitutional rights of the Kejari. The research aims to analyze the role of the state in protecting the constitutional rights of the Kejari within the rule of law framework. The scope of the research describes the structure of values or norms in statutory regulations and the principles it adheres to. Legal principles are used in interpreting the Narcotics Law by linking it to the rule of law framework. The research method is normative legal research using secondary data. The results of the research revealed that the provisions in Article 141 and Article 91 paragraph (1) of the Narcotics Law have the potential to violate the constitutional rights of the Kejari. because it is not in accordance with the protection of constitutional rights in the institutional structure of the prosecutor's office, which may not be intervened in criminal law enforcement. In conclusion, the state plays a major role in implementing the protection of the constitutional rights of citizens and Kejari officials. The state is obliged to fulfill, respect and protect the constitutional rights of citizens. Institutionally, the state synergizes with the prosecutor's office must affirm the ethical and administrative areas concretely and limitatively, so as not to cause obscurity of norms and excessive criminalization of non-criminal acts to become criminal acts.

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Settlement of Syariah Economic Dispute through the Special Court of Syariah Economic in the Religious Courts

Yustisia Jurnal Hukum ◽

10.20961/yustisia.v6i2.12428 ◽

2017 ◽

Vol 6 (2) ◽

Author(s):

Saut Maruli Tua Manik

Keyword(s):

Dispute Resolution ◽

Secondary Data ◽

District Court ◽

Constitutional Court ◽

Basic Law ◽

The Law ◽

The Republic ◽

Branch Office ◽

Law Construction ◽

Religious Courts

ABSTRACTSince the growth of syariah banking in Indonesia, law constraints have been faced, Law Number 7 of 1992 concerning Banking changed into Law Number 10 Of 1998. Law Number 21 of 2008 on syariah Banking, Law Number 3 of 2006 has no effect on the method of dispute resolution of syariah economy. Decision of the Constitutional Court No. 93 / PUU-X / 2012 which strengthens the Religious Courts in accepting, examining, deciding syariah economic cases, but the practice there is still a syariah economic dispute resolution submitted to the District Court. Like the lawsuit to BPSK, against the decision of BPSK, its law remedy to the District Court, another example of using the District Court to resolve the syariah dispute is a matter between CV. Makmur Rezeki with PT. Bank Syariah Mandiri Branch Office Medan Ringroad. This creates a prolonged law uncertainty. This study examines the establishment of a special syariah economic court within the Religious Courts as an institution that can solve the law uncertainty. This study focuses on: First, the importance of the establishment of special courts within the Religious Courts in the settlement of syariah economic disputes; Secondly, the law construction of the establishment of a special syariah economic court within the Religious Courts. This research is a normative-empirical law research, the primary and secondary data sources Obtained from library research and field analyzed by using qualitative method. Qualitative analysis is done by taking into account the facts that exist in the field and combined with secondary data obtained from literature materials. The results of the study show that, Firstly, Decision of the Constitutional Court Number 93 / PUU-X / 2012 which strengthens Religious Courts as the institution authorized to receive, examine, decide the case of syariah economy. In fact, the resolution of the syariah economic dispute still exists in the District Court. The occurrence of dualism of dispute resolution of syariah economy was caused by the unharmonious of legislation and factor of Choice of Forum and factor of judge who should not refuse the case; Secondly, the existence of special court in solving of syariah economic dispute in the environment of Religious Court was supported by law construction namely Basic Law of 1945 and Law Number 48 of 2009 regarding Judicial Power, and position within the Religious Courts under the Supreme Court of the Republic of Indonesia in accordance with Law Number 3 of 2006 concerning Amendment to Law Number 7 of 1989 concerning Religious Courts and Law Number 50 of 2009 on the Second Amendment to Law Number 7 of 1989 on Religious Courts.Keywords: Establishment, Special Court, Syariah Economic Dispute

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Erga Omnes Terhadap Putusan Mahkamah Konstitusi Dalam Perspektif Pembentukan Peraturan Perundang-Undangan

SALAM Jurnal Sosial dan Budaya Syar i ◽

10.15408/sjsbs.v6i4.13707 ◽

2019 ◽

Vol 6 (4) ◽

pp. 331-342

Author(s):

Sucahyono Sucahyono

Keyword(s):

Judicial Review ◽

Research Method ◽

Secondary Data ◽

Constitutional Court ◽

Review System ◽

Literature Study ◽

Decentralized System ◽

The Law ◽

The Republic ◽

Centralized System

Abstract:The Constitutional Court's Decision is a product of the Judicial Review that was submitted to test the validity of the law against the Constitution of the Republic of Indonesia. In the implementation there are two models of the system of testing the law, namely centralized or decentralized system. Both have fundamental differences because the decentralized review system is not Erga Omnes, while the centralized system has the binding nature of Erga Omnes. The research method uses normative juridical methods, using secondary data obtained through literature study and analyzed qualitatively. The results and discussion of this research are that the Constitutional Court has provided much better direction for Indonesian legal politics, as seen from its objective decisions.Keywords: Erga Ormes, Constitutional Court, Statutory Regulations. Abstrak:Putusan Mahkamah Konstitusi merupakan produk dari Judicial Review yang diajukan untuk menguji keabsahan undang-undang terhadap Undang-Undang Dasar Negara Republik Indonesia. Dalam pelaksanaannya ada dua model sistem pengujian undang-undang yaitu centralized atau decentralized system. Keduanya memiliki perbedaan yang mendasar karena system desentralisasi review tidak bersifat Erga Omnes, sedang system centralized memiliki sifat mengikat Erga Omnes. Metode penelitian menggunakan metode yuridis normatif, dengan menggunakan data sekunder yang diperoleh melalui studi pustaka dan dianalisis secara kualitatif. Hasil dan diskusi dari penelitian ini adalah bahwa Mahkamah Konstitusi telah banyak memberikan arah politik hukum Indonesia yang lebih baik, terlihat dari putusan-putusannya yang bersifat objektif.Kata Kunci: Erga Ormes, Mahkamah Konstitusi, Peraturan Perundang-Undangan

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STUFEN THEORY AS A BASIC ANALYSIS OF THE LEGAL STANDING OF THE MINISTERIAL REGULATION AND ITS RELATION TO THE EXECUTION OF THE LOCAL REGULATION

Yustisia Jurnal Hukum ◽

10.20961/yustisia.v8i3.33590 ◽

2020 ◽

Vol 8 (3) ◽

pp. 493

Author(s):

Bachrul Amiq ◽

Yovan Iristian

Keyword(s):

Field Research ◽

Secondary Data ◽

Primary Data ◽

Practice Research ◽

Government Regulations ◽

Legal Standing ◽

Library Research ◽

Hans Kelsen ◽

The Law ◽

The Republic

Law is a set of regulations that contain a kind of unity that we understand through a system, as one form of this realization through Article 22A of the 1945 Constitution of the Republic of Indonesia. The legal force binds a regulation in accordance with the hierarchy as referred to in Article 7 of the Law Number 15 of 2019 on the Establishment of Laws and Regulations (hereinafter Law Number 15 of 2019), but in line with Law Number 15 of 2019, it does not recognize the legal standing of the Ministerial Regulation. This research focuses on analyzing and finding answers to questions about the legal standing and characteristics of Ministerial Regulations in the Hierarchy of Statutory Regulations in Indonesia. The research method with a normative juridical approach, prioritizes library research and its implementation in practice. Research specifications are descriptive. The research phase is carried out through library research, collecting secondary data in the form of primary, secondary, and field research materials to obtain primary data as a support. The theory put forward by Hans Kelsen through Stufen Theory and Adolf Merkl’s theory through (Das Doppelte Rechtsantlitz) as a basic analysis to study the legal standing and characteristics of the Ministerial Regulation. In line with the Law 9 of 2015 on the Local Government that Ministerial Regulations are above Provincial, Regency / City Regional Regulations, thus Ministerial Regulations may not conflict with Presidential Regulations and Government Regulations and provide guidelines for Provincial, District / City Regulations in determining the local regulations

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KEWENANGAN PELAKSANA TUGAS MENTERI DALAM MENGAMBIL KEPUTUSAN DAN TINDAKAN YANG BERSIFAT STRATEGIS BERDASARKAN UNDANG - UNDANG NOMOR 30 TAHUN 2014 TENTANG ADMINISTRASI PEMERINTAHAN

Yustitia ◽

10.31943/yustitia.v4i2.45 ◽

2018 ◽

Vol 4 (2) ◽

pp. 178-187

Author(s):

Sigit Egi Dwitama

Keyword(s):

Ad Hoc ◽

Field Research ◽

Secondary Data ◽

Mineral Resources ◽

Strategic Decision ◽

Strategic Decisions ◽

Government Officials ◽

Legal Validity ◽

Library Studies ◽

The Status

One form of decree that is included in the scope of state administration is a Ministerial Decree, which is a decision determined and issued by a minister who is always concrete-individual in the form of administrative stipulations (beschikking). However, not all departments and/or government officials such as the Minister have the authority to form these decisions, because in forming decisions can be seen from the status of government officials as an example of the Ad Interim Minister who does not have the authority to issue strategic decisions. But different problems arise when there is Ad Interim of Energy and Mineral Resources Minister Luhut Binsar Pandjaitan issued Decree Number 6752 K / 70 / MEM / 2016 concerning Dissolution of Ad Hoc Organizational Units in the Ministry of Energy and Mineral Resources, which basically was a strategic decision. This study is a legal research using a normative juridical approach and descriptive analytical research specifications. The data used in this study are secondary data consisting of primary, secondary and tertiary legal materials. Data obtained through library studies and field research in the form of legislation, books, journals, and electronic media. The results of this study consist of 2 (two) analyzes, namely First, the position of the Acting Decree of the Minister of ESDM does not have legal validity because there is a disability when viewed from the aspect of authority, formation process, and the purpose of its establishment with legislation and AUPB and Second, towards legal validity which is not possessed by the Minister's decree executor, the decree becomes invalid and a mechanism is needed to cancel the decree.

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COVID-19 Fulfilling Workers 'Economic Rights Positive

Journal of Morality and Legal Culture ◽

10.20961/jmail.v1i2.46896 ◽

2020 ◽

Vol 1 (2) ◽

pp. 113

Author(s):

Rosidi Ruslan

Keyword(s):

Secondary Data ◽

Research Data ◽

Labor Rights ◽

Normative Study ◽

Economic Rights ◽

The Status ◽

The Law ◽

The Republic

This study aims to analyze the fulfillment of workers' rights, which are favorable for Covid. This research is a normative study that uses a statutory approach. The research data used is secondary data with primary, secondary, and tertiary legal materials. The results show that efforts to protect labor rights are carried out through a regulation of the Ministry of Manpower of the Republic of Indonesia, which requires companies to pay full wages to workers with the status of people under surveillance, suspected COVID-19 who must be quarantined, and salaries according to the law for workers/laborers. Who missed work because of COVID-19.

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Konstitusionalitas dan Legalitas Norma dalam Pengujian Undang-Undang Terhadap Undang-Undang Dasar 1945

Jurnal Konstitusi ◽

10.31078/jk12110 ◽

2016 ◽

Vol 12 (1) ◽

pp. 172

Author(s):

Mohammad Mahrus Ali

Keyword(s):

Judicial Review ◽

Subject Matter ◽

Constitutional Court ◽

Constitutional Rights ◽

Legal Remedies ◽

The Supreme Court ◽

The Status ◽

Lower Courts ◽

The Subject ◽

The Republic

The Constitutionality of norms are inseparable with the model of judicial review of laws against the 1945 Constitution of the Republic of Indonesia. It can be see from the reviews of abstract and concrete norms by the Constitutional Court of the Republic of Indonesia. The review of conrete norms in the decision of judicial review basically does not constitute authority of the Constitutional Court. Theoretically, norms review should be starting from abstract norms as the implications of the Constitutional Court authority. In order to review the constitutionality of laws, norms and abstract norms should be interpreted by the Constitutional Court. While concrete norms focuse more on the implementation or application of the norm itself. The application of norms cannot be separated from the legality of the norms, while constitutionality of norms is related to its coherence with with the Constitution. If the basis of norms review is the 1945 Constitution of the Republic of Indonesia then abstract norms should be the main subject matter to be reviewed. Otherwise, when concrete norms are the subject matters to be reviewed, then the implementation of the norms that have been applied in concrete cases. This research is using normative juridical method with case approach in which 15 (fifteen) verdicts of the Constitutional Court of Republic of Indonesia over the period of 2003-2013 in judicial review of laws against the 1945 Constitution are analyzed. The focus is on the ratio decidendi of the Constitutional Court judges in determining the constitutionality of norms. The result of this research shows that, the Constitutional Court, in the judicial review of laws against the 1945 Constitution of the Republic of Indonesia does not separate abstract norms and concrete norms dichotomously. In an attempt to protect the constitutional rights of citizens, the absence of legal remedies that can be further pursued by the applicant, as well as to provide legal certainty, the Constitutional Court, granted, in its decision, the review of concrete norms. Even though the Constitutional Court remains firm in satting that it is a concrete norms, the applicant’s petition is granted in part which is concerning the review the abstract norms only. Whereas, with respect to the verdict of the constitutional court that rejected the review of concrete norms, it is because the review is not on the constitutionality of norms but the application of the norms and also concerns a petition for an interlocutory decision which is irrelevant to the subject matter of the case. The review of concrete norms in a rejecting ruling is a form of prudence by the Constitutional Court in order not to prosecute the matters which constitute the authority the other judicial bodies, namely the Supreme Court and the lower courts. As for the ruling which declared a petition inadmissible, the Constitutional Court stated that the applicant has no legal standing and the Constitutional Court does not have the authority to test these norms. In the future the Constitutional Court needs to affirm the status of norms before further examining in depth the petition filed. In addition, the Constitutional Court should be conferred with the authority to hear constitutional complaint and constitutional question in order to create the harmonization of interpretation based on the Constitution.

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CIVIL AND LEGAL LIABILITY OF JUDGES

International scientific journal Internauka Series Juridical Sciences ◽

10.25313/2520-2308-2020-11-6439 ◽

2017 ◽

Author(s):

Yaroslav Skoromnyy ◽

Keyword(s):

Human Rights ◽

Pension System ◽

Legal Liability ◽

Judicial System ◽

Constitutional Court ◽

Model Code ◽

European Court ◽

The Status ◽

The Law ◽

The Right

The article presents the conceptual foundations of bringing judges to civil and legal liability. It was found that the civil and legal liability of judges is one of the types of legal liability of judges. It is determined that the legislation of Ukraine provides for a clearly delineated list of the main cases (grounds) for which the state is liable for damages for damage caused to a legal entity and an individual by illegal actions of a judge as a result of the administration of justice. It has been proved that bringing judges to civil and legal liability, in particular on the basis of the right of recourse, provides for the payment of just compensation in accordance with the decision of the European Court of Human Rights. It was established that the bringing of judges to civil and legal liability in Ukraine is regulated by such legislative documents as the Constitution of Ukraine, the Civil Code of Ukraine, the Explanatory Note to the European Charter on the Status of Judges (Model Code), the Law of Ukraine «On the Judicial System and the Status of Judges», the Law of Ukraine «On the procedure for compensation for harm caused to a citizen by illegal actions of bodies carrying out operational-search activities, pre-trial investigation bodies, prosecutors and courts», Decision of the Constitutional Court of Ukraine in the case on the constitutional submission of the Supreme Court of Ukraine regarding the compliance of the Constitution of Ukraine (constitutionality) of certain provisions of Article 2, paragraph two of clause II «Final and transitional provisions» of the Law of Ukraine «On measures to legislatively ensure the reform of the pension system», Article 138 of the Law of Ukraine «On the judicial system and the status of judges» (the case on changes in the conditions for the payment of pensions and monthly living known salaries of judges lagging behind in these), the Law of Ukraine «On the implementation of decisions and the application of the practice of the European Court of Human Rights».

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THE ROLE OF MARTIAL COURT IN THE PERSPECTIVE OF LAW ENFORCEMENT IN INDONESIA

International Journal of Law, Government and Communication ◽

10.35631/ijlgc.622006 ◽

2021 ◽

Vol 6 (22) ◽

pp. 66-73

Author(s):

Mahfutt Mahfutt ◽

Khairil Anwar ◽

Billi Belladona Matindas

Keyword(s):

Secondary Data ◽

Armed Forces ◽

Primary Data ◽

Court System ◽

Criminal Offenses ◽

The Law ◽

Law And Justice ◽

The Republic ◽

The Military

The position of the Military Court is a body that executes the judicial power in the circle of the Indonesian National Armed Forces to enforce the law and justice with due observance of the interest in the state defense and safety. The Military Court is authorized to try the crimes committed by someone who when committing such crime is a soldier of the Indonesian National Armed Forces, a member of a group or office or body or equal to a soldier pursuant to the Law and someone is not included in the said group as set forth in the Law Number 31 of 1997 on Military Court. Following the reform of 1988, the existence of the Military Court is developed by some activists and the public that observe the Military Court, insisting the Parliament of the Republic of Indonesia to revise Law Number 31 of 1997 on Military Court, with the focus point for a soldier of the Indonesian National Armed Forces who commits a general crime to be tried in the General Court with the reason that the Military Court practice is closed in nature, and another reason is the equalization of rights before the law. The method used in this research is the normative law research that is carried out to obtain the necessary data relating to the problem. The data used is secondary data consisting of primary law materials, secondary law materials, and tertiary law materials. In addition, primary data is also used as the support of the secondary data law materials. The data is analyzed by the qualitative juridical analysis method. The results of the research show that the Military Court is one of the mechanisms that are always tried to be maintained. The outcome from the research discovers that the role of the Martial Court in Indonesia remains effective, fair, and democratic to this date realistically marked by fair punishment within the jurisdiction offended, which corresponds to the need of TNI institution in the aspects of Culture, Benefit, Assurance, and Fairness. It is recommended that the RI Government continuously develop and improve the same by maintaining the role of the Martial Court in punishing criminal offenses committed by military members on the Martial Court system currently in force.

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MENYIKAPI GLOBALISASI HUKUM TANAH DENGAN KEARIFAN LOKAL

Media Keadilan: Jurnal Ilmu Hukum ◽

10.31764/jmk.v10i2.2250 ◽

2019 ◽

Vol 10 (2) ◽

pp. 219

Author(s):

Rina Rohayu H

Keyword(s):

Secondary Data ◽

Developed Countries ◽

Land Law ◽

Legal Intervention ◽

The People ◽

The Law ◽

Globalization Of Law ◽

The Republic ◽

Customary Land

Land given to and owned by people with rights provided by the UUPA is to be used and utilized. The granting and possession of land with these rights will not be meaningful if its use is limited to land as the surface of the earth. The land also has a significant role in the dynamics of development. According to the 1945 Constitution of the Republic of Indonesia NRI, "earth and water are natural resources contained therein controlled by the state and used for the greatest prosperity of the people." This research uses a normative juridical approach that is research based on the rules / according to the law because this research focused on the use of document studies and literature or secondary data. The research specification used is descriptive-analytic, which describes the law of the land in the era of globalization based on local wisdom. The results of the study illustrate that the role of the land ruling state, which used for the prosperity of the people, is regulated under Law No. 5 of 1960 concerning Basic Regulations on Agrarian Principles (UUPA).On the other hand, the globalization of law is nothing more than a legal intervention from developed countries towards developing countries in order to adjust their laws globally. One way to address the problem of globalization of land law is to reaffirm local wisdom. In other words, they are upholding the customary provisions related to land. Example: provisions of customary land. Customary land is communal land that is jointly owned and thus does not need to be certified.Keywords: globalization, land law, local wisdomABSTRAKTanah diberikan kepada dan dipunyai oleh orang dengan hak-hak yang disediakan oleh UUPA, adalah untuk digunakan dan dimanfaatkan. Diberikannya dan dipunyainya tanah dengan hak-hak tersebut tidak akan bermakna, jika penggunaannya terbatas hanya pada tanah sebagai permukaan bumi saja. Tanah juga mempunyai peranan yang besar dalam dinamika pembangunan. Undang-undang Dasar 1945 menjelaskan bahwa “Bumi dan air dan kekayaan alam yang terkandung didalamnya dikuasai oleh negara dan dipergunakan untuk sebesar-besar kemakmuran rakyat.” Penelitian ini menggunakan pendekatan yuridis normatif yaitu penelitian yang didasarkan kepada kaidah-kaidah/menurut hukum, oleh karena penelitian ini dititik-beratkan pada penggunaan studi dokumen dan bahan pustaka atau data sekunder. Spesifikasi penelitian yang digunakan adalah deskriptif analitis yang menggambarkan tentang hukum tanah di era globalisasi berdasarkan kearifan lokal. Hasil penelitian menggambarkan bahwa peran negara penguasa tanah yang digunakan untuk kemakmuran masyarakat diatur berdasarkan Undang-undang No. 5 tahun 1960 tentang Peraturan Dasar Pokok-Pokok Agraria (UUPA). Disisi lain, globalisasi hukum tak lebih sebagai intervensi hukum dari negara maju terhadap negara berkembang agar menyesuaikan hukumnya secara global. Salah satu cara menyikapi persoalan globalisasi hukum tanah ini adalah dengan menegaskan kembali kearifan lokal. Dengan kata lain, menegakkan kembali ketentuan-ketentuan adat terkait dengan tanah. Misalnya ketentuan tanah ulayat. Tanah ulayat merupakan tanah komunal milik bersama, dengan demikian tidak perlu disertifikatkan.

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