scholarly journals Analisis Yuridis Penyelesaian Sengketa Perbankan Syariah Pasca Putusan Mahkamah Konstitusi Nomor 93/PUU-X/2012

2020 ◽  
Vol 5 (2) ◽  
pp. 78-85
Author(s):  
S.H.S Ulil Albab ◽  
Trinah Asi Islam
Keyword(s):  
Rule Of Law ◽  
Court Decision ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Normative Approach ◽  
Library Research ◽  
Legal Implications ◽  
Islamic Economic ◽  
Religious Courts ◽  
Systematic Exposition

Abstract: The problem of resolving Sharia banking disputes arises after the issue of Law Number 8 of 2008 concerning Sharia Banking, precisely in Article 55 paragraph (2). Article 55 paragraph (2) legally reduces Law No. 3/2006 concerning Religious Courts which gives authority to the Religious Courts in resolving Islamic economic disputes. resulting in a dualism of the authority of the Court, namely the Religious Courts and General Courts. In the Constitutional Court Decision Number 93 / PUU-X / 2012 states that Article 55 Paragraph (2) of the Islamic Banking Law, causes legal uncertainty that is contrary to Article 28D Paragraph (1) of the 1945 Constitution concerning legal certainty. This research uses the library research method, namely research that studies and examines theories, and ideas, with a normative approach that aims to provide a systematic exposition of the rule of law. This study analyzes the settlement of Sharia Banking disputes Post Constitutional Court Ruling Number: 93 / PUU-X / 2012 and its legal implications. The decision of the Constitutional Court was that the settlement of sharia banking was settled in the Religious Courts and Arbitration Institutions so that there was no longer dualism in resolving Sharia Banking disputes. Keywords: Juridical Analysis, Sharia Banking Disputes, Constitutional Court Decision Number: 93 / PUU-X / 2012   Abstrak: Masalah penyelesaian sengketa perbankan Syariah muncul setelah lahirnya Undang-Undang Nomor 8 Tahun 2008 Tentang Perbankan Syariah, tepatnya pada Pasal 55 ayat (2). Pasal 55 ayat (2) tersebut secara yuridis mereduksi UU Nomor 3 tahun 2006 tentang Peradilan Agama yang memberikan kewenangan kepada Peradilan Agama dalam menyelesaikan sengketa ekonomi syariah. sehingga menimbulkan dualisme kewenangan Pengadilan yaitu Peradilan Agama dan Peradialn Umum. Dalam Putusan Mahkamah Konstitusi Nomor 93/PUU-X/2012 menyebutkan bahwa Pasal 55 Ayat (2) UU Perbankan Syariah, menyebabkan ketidak pastian hukum yang bertentangan dengan Pasal 28D Ayat (1) UUD 1945 tentang kepastian hukum. Penelitian ini menggunakan Metode penelitian kepustakaan (library research) yaitu penelitian yang mengkaji dan menelaah tentang teori, dan gagasan, dengan pendekatan  normatif yang bertujuan untuk memberikan eksposisi yang bersifat sistematis mengenai aturan hukum. Penelitian ini menganalisi tetang penyelesaian sengketa Perbankan syariah Pasca Putusan Mahkamah Konstitusi Nomor : 93/PUU-X/2012 dan implikasi hukumnya. Putusan Mahkamah Konstitusi tersebut memutuskan penyelesaian perbankan syariah diselesaikan di Pengadilan Agama dan lembaga Arbitase sehingga tidak ada lagi dualisme penyelesaian sengketa Perbankan Syariah. Kata Kunci:   Analisis Yuridis, Sengketa Perbankan Syariah, Putusan Mahkamah                                          Konstitusi Nomor: 93/PUU-X/2012

scholarly journals IMPLIKASI HUKUM TIDAK DILAKSANAKANNYA PUTUSAN MAHKAMAH KONSTITUSI DALAM PERKARA PENGUJIAN UNDANG-UNDANG

2019 ◽  
Vol 2 (2) ◽  
pp. 1089
Author(s):  
Andre Suryadinata ◽  
Toendjoeng Herning Sitaboeana
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
House Of Representatives ◽  
Court Decision ◽  
Constitutional Court ◽  
Legal Research ◽  
The Rule Of Law ◽  
Legal Implications ◽  
Rules Of Procedure

The Constitutional Court is one of the branches of judicial power that has authority to adjudicate at the first and last level whose decision is final to test the law against the Constitution as regulated in Article 24C paragraph (1) of the 1945 Constitution. The final nature of  decision of the constitutional court is binding on the entire community since it was said in the Open Plenary Session. Therefore, decision of constitutional court that invalidates the validity of a law must be followed up by legislators in the cumulative list open to the national legislation program. But in practice there are 2 (two) decisions that have not been followed up, namely Constitutional Court Decision Number 31 / PUU-XI / 2013 and Constitutional Court Decision Number 30 / PUU-XVI / 2018. Based on this description, it will be examined regarding the legal implications of not implementing the Constitutional Court Decision in case of judicial review? The author examines the problem using the method of normative legal research with the statutory approach. From the results of this study, it was found that the non-follow-up of the two decisions had violated the principle of rule of law in concept of the rule of law, and caused the loss of the decision-making power, and was a form of neglect of principle of legal awareness. So it is necessary to make changes in stages of the Constitutional Court Law and the House of Representatives' Regulations on Rules of Procedure.

scholarly journals Penyelesaian Sengketa Ekonomi Syariah di Pengadilan Agama pada Masa Pandemi Covid-19

2021 ◽  
Vol 4 (2) ◽  
pp. 542-556
Author(s):  
Muhamad Hasan Mafruh ◽  
Muhammad Iqbal Fasa ◽  
Ahmad Kumedi Ja'far
Keyword(s):  
Dispute Resolution ◽  
Descriptive Study ◽  
Court Decision ◽  
Islamic Banking ◽  
Constitutional Court ◽  
The Supreme Court ◽  
Qualitative Descriptive ◽  
The Government ◽  
Islamic Economic ◽  
Religious Courts

The authority to adjudicate sharia economic disputes has absolutely become the authority of the Religious Courts since the issuance of Law No. 3/2006 concerning Amendments to Law No. 7/1989 concerning Religious Courts and strengthened by Law No. 21/2008 concerning Sharia Banking and the Constitutional Court Decision No. 93/PUU-X/2012. Every year, Islamic economic transactions always increase, even though during the pandemic, Islamic banking in Indonesia grows positively. However, the higher and increasing sharia economic transactions in Indonesia, the more disputes that occur. During the current covid-19 pandemic, the government has issued regulations regarding restrictions ranging from PSBB to PPKM. The purpose of this research is to encourage the emergence of sharia economic dispute resolution innovations, especially in the Judiciary during the Covid-19 pandemic without having to violate the Health protocol. This study uses a qualitative descriptive study, which uses literature studies quoted from books and regulations, both laws and other regulations, as well as direct research into the field to see the realities on the ground related to the settlement of sharia economic disputes during the pandemic. The results in this study indicate that the Supreme Court responds quickly to the rules and policies issued by the government by launching an e-court application and investigation (electronic trial). There are many benefits and conveniences that are felt by people seeking justice, especially parties in sharia economic disputes. However, there are still some obstacles experienced by the Religious Courts and justice seekers in electronic proceedings.

DEKADENSI PEMILIHAN HAKIM AGUNG OLEH DPR RI

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.

scholarly journals A Populist Monster and the future of Constitutional Democracy

2021 ◽  
Vol 4 (1) ◽  
pp. 83-100
Author(s):  
Andraž Teršek
Keyword(s):  
Rule Of Law ◽  
Legal Protection ◽  
Constitutional Court ◽  
Court Decisions ◽  
Constitutional Democracy ◽  
Council Of Europe ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Social ◽  
The Eu

Abstract The central objective of the post-socialist European countries which are also Member States of the EU and Council of Europe, as proclaimed and enshrined in their constitutions before their official independence, is the establishment of a democracy based on the rule of law and effective legal protection of fundamental human rights and freedoms. In this article the author explains what, in his opinion, is the main problem and why these goals are still not sufficiently achieved: the ruthless simplification of the understanding of the social function and functioning of constitutional courts, which is narrow, rigid and holistically focused primarily or exclusively on the question of whether the judges of these courts are “left or right” in purely daily-political sense, and consequently, whether constitutional court decisions are taken (described, understood) as either “left or right” in purely and shallow daily-party-political sense/manner. With nothing else between and no other foundation. The author describes such rhetoric, this kind of superficial labeling/marking, such an approach towards constitutional law-making as a matter of unbearable and unthinking simplicity, and introduces the term A Populist Monster. The reasons that have led to the problem of this kind of populism and its devastating effects on the quality and development of constitutional democracy and the rule of law are analyzed clearly and critically.

Implication Juridical Decision of The Constitutional Court No. 18/PUU-XVII/2019 Concerning Wanprestasi In the Fiducia Agreement

2021 ◽  
Vol 3 (1) ◽  
pp. 12-21
Author(s):  
Soleh Hasan Wahid ◽  
Harum Mudrikah Mahsun
Keyword(s):  
Legal Protection ◽  
Court Decision ◽  
Constitutional Court ◽  
Literature Study ◽  
Breach Of Contract ◽  
Library Research ◽  
Security Holder ◽  
Approach Method ◽  
Data Collection Technique ◽  
Research Type

The purpose of this paper is to criticize the Constitutional Court Decision Number 18 / PUU-XVII / 2019, which determines that the phrases "executorial power" and "are the same as court decisions having permanent legal force" in Article 15 paragraph (2) of Law Number 42 of 1999 concerning The Fiduciary Guarantee contradicts the 1945 Constitution. From the norms contained in this article, there is a power of execution that the fiduciary security holder can carry out (creditors), which then causes many problems, both related to the constitutionality of norms and implementation. Thus, the authors question two things, first how is the juridical analysis of the Constitutional Court decision No. 18 / PUU-XVII / 2019 regarding breach of contract in the fiduciary agreement? Second, what is the juridical implication of MK Decision No. fiduciary? The writer's research type is library research, a literature study (library research) with a descriptive qualitative research type. The data collection technique used was documentation techniques, and the approach method used in this study was juridical normative. The results of this study conclude that 1) The Constitutional Court's decision has not provided a sense of justice as in Article 27 paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution, because in this Constitutional Court decision gives more exclusive rights to the debtor because in this case, the creditor does not get legal protection rights in the event of undesirable things (2) This decision has implications for various parties, namely the Court, which now often receives requests for execution and the process will be lengthy, for notaries must add and clarify default clauses in detail. For business people whose creditors (fiduciary recipients) cannot carry out unilateral execution of the object of fiduciary security but must submit a request for performance to the Court. There is a concern that lousy faith will occur from the community's debtor when the creditor is submitting a request for execution to the Court.

APPLICATION OF THE RULE OF LAW IN JUDICIAL PRACTICE

2017 ◽  
Author(s):  
Lyudmyla Bogachova ◽  
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Social Relations ◽  
Political Power ◽  
Early Stage ◽  
The State ◽  
Broad Sense ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Judicial Practice

The article defines the concept of the principle of the rule of law both in the narrow and broad sense. In the narrow sense, the principle of the rule of law is understood as the rule of law over legislation, and in the broad sense - as the rule of law over the state, state arbitrariness. Different approaches to disclosing the content of the principle of the rule of law in national and European legal doctrines are systematized. The lack of a single generally accepted concept of the principle of "rule of law" is emphasized. The decisions of the European Court of Human Rights are analyzed; attention is focused on their interpretation of the rule of law. The realization of the principle of the rule of law, primarily presupposes the domination of inalienable and inviolable human rights and freedoms over the political power of the state, and also requires quality laws and observance of the principle of legal certainty. The interpretation of the principle of the rule of law in the decisions of the Constitutional Court of Ukraine is considered. The CCU emphasizes that the rule of law is first and foremost the "rule of law in society"; characterizes the principle, linking it to the ideas of social justice, freedom and equality, without which it is impossible to imagine true human development and existence. The Constitutional Court calls justice as one of the basic principles of law, which is crucial in defining it as a regulator of social relations, one of the universal dimensions of law. Examples of application of the rule of law in the practice of the Supreme Court of Ukraine are given. Judges not only make a formal reference to the rule of law, but also try to analyze and disclose the content of its constituent elements (requirements) within a specific legal case. The main problems that hinder the effective implementation and realization of the rule of law in judicial practice are identified, namely - the lack of proper regulation and official interpretation; low quality of laws and legislative process; excessive number of conflicting laws; low level of legal awareness and legal culture of Ukrainian society, and early stage of civil society development in Ukraine. It is concluded that the rule of law is a principle whose main content is expressed in the following aspects: ensuring the rule of law over political power; subordination of state institutions to the needs of human rights protection and ensuring their implementation; priority of these rights over all other values of democratic, social, and legal state; preventing the manifestation of arbitrariness of state power, as well as ensuring compliance with the requirements of justice.

The Role of the Constitutional Court in the Development of the Rule of Law in Kosovo

2018 ◽  
Vol 43 (3) ◽  
pp. 274-313
Author(s):  
Enver Hasani
Keyword(s):  
Material Culture ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional History ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Past ◽  
History Of ◽  
Communist Countries

Kosovo’s Constitutional Court has played a role of paramount importance in the country’s recent history. The author uses a comparative analysis to discuss the role of the Court in light of the work and history of other European constitutional courts. This approach sheds light on the Court’s current role by analyzing Kosovo’s constitutional history, which shows that there has been a radical break with the past. This approach reveals the fact that Kosovo’s current Constitution does not reflect the material culture of the society of Kosovo. This radical break with the past is a result of the country’s tragic history, in which case the fight for constitutionalism means a fight for human dignity. In this battle for constitutionalism, the Court has been given very broad jurisdiction and a role to play in paving the way for Kosovo to move toward Euro-Atlantic integration in all spheres of life. Before reaching this conclusion, the author discusses the specificities of Kosovo’s transition, comparing it with other former communist countries. Among the specific features of constitutionalism in Kosovo are the role and position of the international community in the process of constitution-making and the overall design of constitutional justice in Kosovo. Throughout the article, a conclusion emerges that puts Kosovo’s Constitutional Court at the forefront of the fight for the rule of law and constitutionalism of liberal Western provenance.

scholarly journals On the rule of law and the quality of the law: reflections of the constitutional-turned-international judge

2019 ◽  
pp. 131
Author(s):  
Egidijus Küris
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
European Convention ◽  
Constitutional Court ◽  
Legal Tradition ◽  
The Rule Of Law ◽  
Derechos Humanos ◽  
European Court ◽  
The Law

Western legal tradition gave the birth to the concept of the rule of law. Legal theory and constitutional justice significantly contributed to the crystallisation of its standards and to moving into the direction of the common concept of the rule of law. The European Court of Human Rights uses this concept as an interpretative tool, the extension of which is the quality of the law doctrine, which encompasses concrete requirements for the law under examination in this Court, such as prospectivity of law, its foreseeability, clarity etc. The author of the article, former judge of the Lithuanian Constitutional Court and currently the judge of the European Court of Human Rights, examines how the latter court has gradually intensified (not always consistently) its reliance on the rule of law as a general principle, inherent in all the Articles of the European Convention on Human Rights, to the extent that in some of its judgments it concentrates not anymore on the factual situation of an individual applicant, but, first and foremost, on the examination of the quality of the law. The trend is that, having found the quality of the applicable law to be insufficient, the Court considers that the mere existence of contested legislation amounts to an unjustifiable interference into a respective right and finds a violation of respective provisions of the Convention. This is an indication of the Court’s progressing self-approximation to constitutional courts, which are called to exercise abstract norm-control.La tradición occidental alumbró la noción del Estado de Derecho. La teoría del Derecho y la Justicia Constitucional han contribuido decisivamente a la cristalización de sus estándares, ayudando a conformar un acervo común en torno al mismo. El Tribunal Europeo de Derechos Humanos emplea la noción de Estado de Derecho como una herramienta interpretativa, fundamentalmente centrada en la doctrina de la calidad de la ley, que implica requisitos concretos que exige el Tribunal tales como la claridad, la previsibilidad, y la certeza en la redacción y aplicación de la norma. El autor, en la actualidad Juez del Tribunal Europeo de Derechos Humanos y anterior Magistrado del Tribunal Constitucional de Lituania, examina cómo el primero ha intensificado gradualmente (no siempre de forma igual de consistente) su confianza en el Estado de Derecho como principio general, inherente a todos los preceptos que forman el Convenio Europeo de Derechos Humanos, hasta el punto de que en algunas de sus resoluciones se concentra no tanto en la situación de hecho del demandante individual sino, sobre todo y ante todo, en el examen de esa calidad de la ley. La tendencia del Tribunal es a considerar que, si observa que la ley no goza de calidad suficiente, la mera existencia de la legislación discutida supone una interferencia injustificable dentro del derecho en cuestión y declara la violación del precepto correspondiente del Convenio. Esto implica el acercamiento progresivo del Tribunal Europeo de Derechos Humanos a los Tribunales Constitucionales, quienes tienen encargado el control en abstracto de la norma legal.

scholarly journals Perlindungan Hukum atas Desain Industri Berdasarkan Undang-Undang No 31 T Ahun 2000

2021 ◽  
Vol 2 (2) ◽  
pp. 297-301
Author(s):  
Ida Ayu Mas lndriani ◽  
Ni Made Jaya Senastri ◽  
Ni Made Puspasutari Ujianti
Keyword(s):  
Rule Of Law ◽  
Industrial Design ◽  
Legal Protection ◽  
Secondary Data ◽  
Conceptual Approach ◽  
The Rule Of Law ◽  
Legal Implications ◽  
Design Law ◽  
Protection Of Human Rights ◽  
Definition Of

Intellectual property rights including industrial designs. The idea of ​​industrial design safety is based on the belief that human imagination, taste and initiative are closely linked to industrial design. The state grants protection against new industrial designs. The definition of the rule of law used in the legal protection of industrial designs is based on Law No. 31 of 2000. One of the components in this case is the protection of human rights which is the guideline for the legal protection of industrial designs. There are two forms of industrial design legal protection, which include preventive legal protection and repressive legal protection. This study aims to examine the form of legal protection for industrial designs based on Law No. 31 of 2000 and analyze the legal implications if the design rights holder does not register their industrial designs. This research was designed using normative research with a conceptual approach. The data used are primary and secondary data obtained through documentation and recording. The results of the study indicate that preventive legal protection is contained in the Act which is used to prevent violations and a description of the implementation of obligations while repressive legal protection is security in the form of sanctions for violations that have been committed. In view of this and considering the existence of protection in the form of the industrial design law, the designer can prevent the occurrence of plagiarism of his industrial design by registering his industrial design.

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