Decision Of Constitutional Court Research Articles

The Constitutional Court’s Journey to Bureaucratic Reform

The purpose of this study is to analyze the bureaucratic ethics of the Constitutional Court related to the objectives and constitutional values in the decisions of the Constitutional Court judges, as well as the role of bureaucratic reform based on Presidential Regulation Number 81 of 2010. The method used is a literature study. This method involves analyzing secondary data from Constitutional Court decisions, laws and regulations, and other scientific literature focusing on the research topic. The results showed that ethical violations by Constitutional Court judges are a serious challenge to the integrity of the Constitutional Court institution. After the amendment of the 1945 Constitution after the reform, the Constitutional Court became the highest judicial institution against corruption, collusion, and nepotism. Despite four amendments, legal irregularities in the Constitutional Court still occur, indicating that post-reform law enforcement has not been optimal. The main challenge is the inability of the bureaucracy to serve the public interest. The importance of bureaucratic reform is illustrated by the need to improve the integrity of the Constitutional Court, rebuild public trust, and ensure that this institution continues to function as a justice enforcer that serves the public interest.

The dose–effect relationship in PTSD: the South African Constitutional Court Case of AK v. Minister of Police (2022)

The decision of the South African Constitutional Court in AK v. Minister of Police has implications for law enforcement agencies that fail the victims of crime. In this matter, the plaintiff sued the Minister and others for damages after officers had failed to rescue her from the perpetrator(s) of a protracted sexual assault and to conduct an adequate criminal investigation afterwards. The judgment deals with a noteworthy psycholegal issue, namely, whether the police are liable for any harm resulting from the plaintiff’s continued trauma exposure beyond the moment a competent search would have likely resulted in her rescue, when her trauma exposure was already prolonged. In this paper, we consider whether the interpretation of the expert evidence is consistent with the relevant research. Research suggests the psychological harm caused by police negligence may have been more than a matter of extended trauma exposure but also of supplemental trauma appraisals.

The Constitutionality of Inheritance Rights for Extramarital Children: Assessing the Legal Response under Balinese Customary Law

This article analyzes the inheritance rights of children of extramarital under the Balinese Customary Law post-Constitutional Court decision. This study focuses on the extramarital position in inheritance under Balinese Customary Law after the enactment of Constitutional Court decision. Any child born from unmarried parents and adultery is stigmatised as extramarital child (walad al zina)for his entire life and is forbidden from inheriting an estate of his biological father. Then, the reason why this legal issue is chosen as the main subject of the study is due to the legal circumstance in which the Balinese community does not grant a position to extramarital children under Balinese customary law in inheritance from the Purusa line. Hindu-Balinese religious leaders such as Parisada, as well as the Traditional Village Council, have never followed up the Constitutional Court's ruling stating that children born out of wedlock have civil relations with their biological fathers. Islamic religious leaders have followed up on the Constitutional Court's decision by issuing a fatwa of the Indonesian Ulema Council (MUI) imposing an obligation on biological fathers to separate their wealth for a guarantee of life to children. Applying the statutory approach, conceptual approach, sociological approach, and case approach, it can be understood that children born out of wedlock (Balinese call it begin at children) have no position as heirs in the purusa line but only have an inheritance relationship with their mother and their mother's family.

KEWENANGAN MAHKAMAH KONSTITUSI TERHADAP PUTUSAN PERKARA NOMOR 90/PUU-XXI/2023

The decision of the Constitutional Court in case Number 90/PUU-XXI/2023 in the general election trial Number 7 of 2017, the opinions of legal experts and the public are contradictory. There are political parties who say the decision is right, and there are also those who say the Constitutional Court's decision is wrong. Furthermore, the problem formulated in this study is based on this background, namely the competence of the Constitutional Court and the legal consequences of its decisions. The research method is a normative and applicable legal approach. This research uses library research, namely. Qualitative studies are carried out by collecting library materials, reading and taking notes, and carrying out analysis on library materials that have been selected for use. Based on the results of this research, the Constitutional Court has the competence to make decisions on matters relating to the age limit for candidates for President and Vice President, where the court's decision is definite and binding.

Putusan Mahkamah Konstitusi Nomor 85/PUU-XX/2022: Badan Peradilan Khusus Perkara Perselisihan Hasil Pemilihan Gubernur, Bupati dan Walikota

The purpose of this research is to determine and analyze the balance of Constitutional Court Judges in Decision Number 85/PUU-XX/2022 and the legal implications of Decision Number 85/PUU-XX/2022 on special courts for resolving disputes over election results. The research issues include: 1) What are the considerations of Constitutional Court Judges in Decision Number 85/PUU-XX/2022? 2) What are the legal implications of Decision Number 85/PUU-XX/2022 on special courts for resolving disputes over election results? The research method used in this thesis is normative juridical, meaning the research starts from legal issues by analyzing legal problems through legislation, literature, and other reference materials. This thesis employs several approaches, including legal approach, conceptual approach, and case approach. The results of the discussion in this study indicate that: 1) Legal considerations underlying the Constitutional Court Decision include the absence of a special court designated by the President/Government and the DPR to handle disputes over the results of regional head elections, fundamental changes to Article 157 in three amendments to the Regional Head Election Law; the history of the development of authority in resolving disputes over election results in the Constitutional Court; and the elimination of differences in the election regime for both general elections and regional head elections. 2) The implication of constitutional Court Decision number 85/PUU-XX/2022 are, firstly, it removes the role of special judicial bodies in handling disputes over regional elections results” Secondly, there is inconsistency in the Constitutional Court’s decisions, as it previously mandated that settling regional election disputes (PHPUD) is not within the authority of the Constitutional Court. Thirdly, there is a pilin gup of election-related cases in the Constituional Court.

Constitutional Values And Judges Morals In The Decision of The Constitutional Court Number 90/PUU-XXI/2023: Review of The Flow of Natural Law

The decision of the Honorary Council of the Constitutional Court stated that the Constitutional Court judges who examined case Number 90/PUU-XXI/2023 were proven to have violated the right to refuse. The right to refuse is part of the independent and impartial principle of the Constitutional Court. There has been a conflict of interest between the norms being tested and the Constitutional Court judges. Conflicts of interest are constitutional and moral violations. What are the juridical consequences of Constitutional Court Decision Number 90/PUU-XXI/2023 which violates the constitution and morals from the perspective of natural law philosophy? This research uses a normative juridical research method with a conceptual approach, a statutory approachs and a case approach. The results of the discussion have found that in the MKMK decision that the judge consciously and deliberately ignored constitutional principles regarding the right to refuse in Law Number 48 of 2009 concerning Judicial Power. Overruling the right to refuse is tantamount to overruling constitutional principles. Judges place constitutional values in practice as semantic values. Apart from that, there was a moral violation which was assessed by the lack of awareness not to review case Number 90/PUU-XXI/2023 due to a conflict of interest. Awareness comes from conscience and is closely related to integrity, independence and impartiality. The integrity of judges as enforcers and guardians of the constitution is at stake. Moral and legal principles in the constitution are two things that go hand in hand in natural law philosophy.

The Role of Pancasila Ideology in the Development of the Constitution and Legal System in Indonesia

Pancasila is the unity and unity of the Indonesian nation with the function of being the basis for carrying out government administration and regulating the state structure as a whole. Pancasila is a national symbol that functions as the basis for carrying out government administration and regulating people's daily lives. The Pancasila ideology helps shape the character of a nation that is honest, disciplined, thinks critically, is responsible, is fair, loves the country, is tolerant, embraces each other and has high social awareness. Constitutional Court decisions that reflect constitutional values ensure a reexamination of the 1945 constitution and often lead to conflicting situations such as disagreements over election results that must be resolved by all parties involved. The Constitution has the responsibility to make the first and final decisions regarding changes to laws relating to the 1945 Constitution. The aim of this research is to determine the role of the Pancasila Ideology in the Development of the Constitution and Legal System in Indonesia. This research uses the literature review method, which is research carried out by collecting library data, or research through various sources of information. The results and discussion in this research Pancasila is an ideology or guideline for Indonesian society and the laws that apply in Indonesia must be based on the 1945 Constitution. The Constitution is the foundation of the government and its implementation requires a thorough understanding of the social background and long-term goals of a country. Therefore, the philosophical basis of the constitution must be clear and consistent with the wishes of the government, which basically reflects the wishes of the people. It can be concluded that Pancasila contains values that can be implemented by the Indonesian people. In Pancasila there are the values of norms, ethics and moral behavior. Meanwhile, the 1945 Constitution contains a legal basis in written form. The laws that apply in Indonesia must be in accordance with the 1945 Constitution. The law has a high position, therefore every Indonesian citizen must comply with all applicable laws and will receive sanctions if Indonesian citizens commit deviations.

Shabbat and Shattered Dreams: Religious Accommodations for Public Exams in South Korea

Abstract Today in South Korea, individuals of certain faiths are unable to take a wide range of state-administered qualifying examinations due to their religious convictions. The Constitutional Court of Korea has repeatedly refused their request for religious accommodations, such as an alternative test date for Sabbath or holy day observers who are unable to take exams on their original dates. The authors analyze the series of Constitutional Court decisions rejecting the need for such accommodation by focusing on the court’s use of its main analytical tool, the proportionality principle. These decisions reveal important shortcomings in the court’s application of the proportionality principle, including challenges inherent to proportionality and more specific deficiencies in the court’s application of the general principle. The article thus sheds light on how the proportionality principle is applied in the context of Korean constitutional jurisprudence and the resultant deprivation of protection for certain fundamental rights in Korea. The authors compare the court’s approach with that of courts in Spain, Switzerland, and the United States. They then propose a number of ways to improve the court’s proportionality analysis and its constitutional reasoning.

The Character of Legal Products in Indonesia: A Study of Changes to the Marriage Law from a Political-Law Perspective

Politics and law are two variables that can influence each other in a legal system. Legal politics is a form of state policy carried out through authorized state institutions to establish the desired regulations, which are expected to be used to express what is contained in society and to achieve the desired goals. This research aims to examine the character of statutory legal products, namely the character of legal products of Law Number 16 of 2019 concerning Amendments to Law Number 1 of 1974 concerning Marriage. This research is normative legal research which makes norms the object of study using a legal approach analyzed using legal political theory. The data collection technique used is literature study. Research findings show that in general the character of the legal product of Law Number 16 of 2019 concerning Amendments to Law Number 1 of 1974 concerning Marriage is responsive in view of the birth of the law. However, the provisions of Article 7 paragraph (2) of Law Number 16 of 2019 do not show a responsive or conservative character. The provisions in this article are not in accordance with the spirit of change based on Constitutional Court Decision Number 22/PUU-XV/2017 and seem ahistorical. Theoretically, the conservative character in legal politics is a legal product that is not democratic, different from responsive legal products, namely legal products that accommodate a variety of opinions. Other findings show that there is no judicial institution that has the authority to check the consistency between the provisions of one article or paragraph and another in one form of legal product.

Analisis Hukum Islam terhadap Penetapan Hukum Hakim tentang Perkawinan Beda Agama di Indonesia dalam putusan Nomor: 12/Pdt.P/2022/PN. Ptk

This research focuses on analyzing the legal of islam basis of the judge's considerations in Court Determination Number: 12/Pdt.P/2022/Pn. Ptk, and the legality of interfaith marriages are reviewed from Law Number 1 of 1974 concerning marriage, as well as the law regarding court decisions regarding interfaith marriages. The type of research used is qualitative research. This research uses primary and secondary data. The data collection method in this research uses library research. Based on research conducted, it is known that the judge referred to Article 35 of Law number  23 of 2006 concerning Population Administration which states that marriage registration applies to marriages determined by the court, so that the judge interprets the meaning of the marriage determined by the court to be an interfaith marriage. Law Number 1 of 1974 concerning Marriage states that marriage is valid based on the rules of religious law, but if an interfaith marriage is carried out outside the jurisdiction of Indonesia and its registration is considered valid. The legal implications that arise as a result of this court decision are the status and position of children. It is recommended that judges in taking considerations not only refer to one interpretation, but also look at other legal considerations such as the Constitutional Court decision Number 68/PUU-XII/2014 in the petition for Review of Law Number 1 of 1974 concerning Marriage which clearly rejects be firm regarding interfaith marriages, and use considerations based on other laws. To the DPR and the Government to immediately revise the Marriage Law by strengthening the prohibition on interfaith marriages in order to eliminate the legal vacuum. To society, interfaith marriages should not be carried out.

Juridical Analysis of Constitutional Court Decision Number 20/PUU-XXI/2023 Concerning Judicial Review by the Prosecutor's Office in Criminal Cases in Indonesia

Juridical Analysis of Constitutional Court Decision Number 20/PUU-XXI/2023 Concerning Judicial Review by the Prosecutor's Office in Criminal Cases in Indonesia

Criminal Law Policy Regarding Insults of the President and Vice President in Law No. 1 Year 2023

This research aims to analyze the constitutional court's considerations in decriminalizing the formulation of the article on insulting the president and vice president in the Criminal Code and to analyze criminal law policy regarding the urgency of the article on insulting the president and vice president in Law No. 1 of 2023. Using normative legal research methods. The results of this research are that criminal policy, like public policy in general, must basically be a rational policy, one measure of the rationality of criminal law policy, among others, can be linked to the usefulness and effectiveness in making a rule so that it becomes a measure of rationality placed on the problem of the success or effectiveness of the criminal in achieving his goals. The regulation of the substance of the formulation of articles on insulting the president and vice president in Law No. 1 of 2023 is not in accordance with the spirit of the Constitutional Court decision Number 013-022/PUU-IV/2006 which states that Article 134, Article 136 bis, and Article 137 of the Criminal Code do not have binding legal force. Apart from that, the Constitutional Court has ordered not to re-regulate the offense of insulting the president and vice president in any law, because it is considered to hamper or reduce the freedom of freedom to express opinions both orally and in writing as regulated in the constitution (1945 Constitution) which is stat fundamental norm.

The ‘no greater rights’ principle: heading to a new Calvo Clause?

Abstract Recently, the very developed countries that championed the spread of international investment agreements began to challenge these treaties on the grounds that they afford foreign investors with greater rights vis-à-vis domestic investors and thus violate the constitutional principle of equality. This represented, under the banner of the ‘no greater rights’ principle, the resurgence of a once fiercely opposed doctrine of international law that originated in Latin America during the XIX century: The Calvo Doctrine. This contribution seeks to establish the actual breadth and significance of this new Calvo Doctrine. It concludes that the ‘no greater rights’ has a political, rather than a legal meaning, and is thus generally unsuitable to assure the desired equality between foreign and domestic investors. It also reveals that a recent decision of the Colombian Constitutional Court may give the ‘no greater rights’ a new (more real) meaning, by reviving a forgotten by-product of the Calvo Doctrine, the Calvo Clause.

ISSUES OF LEGAL CERTAINTY AFTER THE ISSUANCE OF MINISTER OF MANPOWER REGULATION NO. 18 OF 2022 ON MINIMUM WAGE DETERMINATION FOR 2023.

In November 2022, the government issued Minister of Manpower Regulation No. 18 of 2022 concerning the Determination of Minimum Wage for 2023, despite already having regulations related to wages, namely Government Regulation No. 36 of 2021 concerning Wages.  The emergence of this regulation is considered to cause legal uncertainty as there is already a government regulation on wages and it undermines the results of the constitutional review of the Job Creation Law, where the Constitutional Court's decision states that the Job Creation Law remains valid for the next 2 years and does not require additional regulations. This has led to legal uncertainty regarding wage regulations. The research method employed in this study is the normative legal research method, which involves examining literature or secondary data.  The approach used included the statute approach, which analyzes all legislation and regulations related to the legal issues being addressed, and the conceptual approach, which stems from perspectives and doctrines within legal studies. The data used consisted of secondary data obtained through literature reviews and primary data obtained through interviews with respondents and relevant institutions. The results of this research are expected to provide answers to the dualism in legislation regarding wages, particularly for legal certainty for employers, workers, and investors. The determination of minimum wage is indeed crucial in the economic field, as it relates not only to the purchasing power of the society for wage increases but also to legal certainty needed by employers and investors, including the government's consistency in enacting legislation.

Do Adjectives Matter? Exploring the ‘Islamic’ in Constitutions and Constitutionalism(s)

Abstract This paper calls for a paradigm shift in the face of the remarkably common, but ultimately stereotypical and simplistic perceptions of ‘Islamic’ constitutions requiring all laws to conform to Shari’a. It problematizes the term ‘Islamic’ to describe disparate constitutions and constitutionalism(s) in Muslim majority countries demonstrating the plurality of ‘Islamic’ constitutions, locating this descriptor within varied socio-cultural, historical and political contexts of the Muslim world. Plural interpretations of the religious texts in Islam — i.e., the Qur’an and Sunna — and meanings of complex concepts — ‘Shari’a’ and ‘Islamic law’, are integral to Islam’s (legal) traditions. In Muslimmajority countries, a variety of constitutional texts, court decisions and state practices, demonstrate this plurality. We argue that use of ‘Islamic’ as a descriptor for heterogeneous constitutional texts, is a product of ‘realpolitik’ and deployed in this manner, un-nuanced, simplistic, and reductive of the dynamic and plural nature of Shari’a

Contante Justitie System in Corruption Cases in Indonesia: A Legal Constructivism System Paradigm

The legal consequences of Constitutional Court Decision Number 25/PUU-XIV/2016 stating that Law Number 31 of 199 in conjunction with Law Number 20 of 2001 concerning the Eradication of Corruption Crimes which is contrary to the 1945 Constitution and specifically deletes the phrase "can" in Article 2 paragraph (1) and Article 3 of the Eradication of the Criminal Act of Corruption Law have a legal impact on the characteristics of the offense. This was normative legal research which uses a statutory and conceptual approach. Results showed that the Financial Audit Board's future arrangements can fulfill the principle of Contante Justitie, namely speeding up the investigative examination process. It was applied by delegating authority from the Central BPK to the Regional BPK Representative auditors so that the latter have independent investigative audit authority to speed up the investigative Audit Result Report process in handling corruption to fulfill the legal system constructivism concept. 

Quo Vadis Landasan Hukum Pengangkatan Penjabat Kepala Daerah

The Ministry of Home Affairs issued Permendagri No. 4 of 2023 as a legal basis for the appointment of acting regional heads. In fact, viewed from various aspects, the legal basis in the form of Permendagri is not sufficient and inappropriate to accommodate the needs of the mechanism for appointing acting regional heads. The research methods used in this study belong to the normative juridical type of research. The type of data used is secondary data, so the data collection uses literature studies. The data analysis method used is qualitative analysis. This article finds the problem of non-conformity in the formation of appointment regulations in the form of Permendagri, and finds several issues that will be discussed: First, the position of the Ministerial Regulation in the legal system in Indonesia. Second, Permendagri 4/2023 contradicts Article 86 Paragraph (6) of Law No. 23 of 2014 concerning Regional Government. Third, Permendagri 4/2023 ignores the recommendations of Constitutional Court Decision No. 67/PUU-XIX/2021. This article concludes that harmonization is needed in the issuance of technical regulations for the appointment of acting regional heads, so it is recommended to issue laws and regulations in the form of Government Regulations as mandated by the Constitutional Court and laws.

Hegemony of Political Parties and Regional Political Oligarchy

This study aims to delve into the prevalence of single candidates participating in regional elections across various regions following the Constitutional Court Decision Number 100/PUU-XIII/2015. It explores how political party elites and oligarchs strategically maneuver to either maintain or acquire power. Specifically focusing on Boyolali Regency, this research employs a qualitative descriptive approach to uncover the underlying causes behind the emergence of a single candidate. The findings reveal the significant influence of hegemonic forces wielded by major political parties over smaller ones, orchestrated by oligarchs. Importantly, the study highlights that this hegemonic dominance is not driven by factors such as religious majority affiliations with political parties but rather emerges as a purely oligarchic endeavor aimed at controlling both the nomination process and victory outcomes of single candidates.

Perlindungan Hukum terhadap Kreditur Pasca Putusan Mahkamah Konstitusi Nomor 18/PUU-XVII/2019

After the Constitutional Court decision Number 18/PUU-XVII/2019, the execution of fiduciary collateral created a sense of injustice and lack of legal certainty for creditors as money lenders. This decision eliminates the Creditor's authority to execute fiduciary collateral objects, as previously stated in article 15 paragraph 3 of the fiduciary law. As a result, the Creditor experienced problems in executing the fiduciary guarantee object after the Debtor failed to fulfil its obligations. The purpose of this writing is to find out what the ideal form of legal protection for Creditors is after the Constitutional Court decision Number: 18/PUU-XVII/2019. The research method used in this research is normative juridical, which only focuses on legal materials using a conceptual approach and a statutory approach. The results of this research are Constitutional Court Decision Number: 18/PUU-XVII/2019 which has made the fiduciary law lose its role as the law establishing fiduciary guarantee institutions. Fiduciary guarantee certificate has lost its identity because the executorial power over the object of fiduciary guarantee which is considered to be the same as the district court decision no longer applies if the Debtor does not voluntarily hand over the object which is the object of fiduciary guarantee to the Creditor.

Tinjauan Fiqh Siyasah Terhadap Putusan Mahkamah Konstitusi No. 90/PUU-XXI/2023 Tentang batas Usia Capres dan Cawapres

The Constitutional Court in Decision Number 90/PUU-XXI/2023 examines the qualifications stipulated in Article 169 letter (q) of Law Number 7 of 2017 concerning the General Elections for the President and Vice President Candidates. This study aims to examine how the interpretation of Fiqh Siyasah relates to the Constitutional Court Decision No. 90/PUU-XXI/2023 regarding the age limits of presidential and vice-presidential candidates. The research method used in this journal is normative juridical research techniques. The research findings show an analysis of Siy?sah qa?h?'iyyah's assessment of Constitutional Court Decision Number 90/PUU-XXI/2023 regarding the age limits of presidential and vice-presidential candidates. This can be equated with the authority of Wil?yah al-ma?h?lim in addressing injustices, arbitrariness, and abuse of authority by the authorities towards their society. Provisions regarding the inability of the Constitutional Court (MK) to decide on matters related to family interests must be more precisely and firmly regulated in relation to such issues. Solutions to Constitutional Court decisions (MK) due to violations of the code of ethics or legal issues are needed. Legal efforts must include improvements by the People's Representative Council (DPR) or reconsideration by the Constitutional Court (MK), excluding judges who have violated the code of ethics. Constitutional Court Decision Number 90/Puu-XXI/2023 which imposes age limits on presidential and vice-presidential candidates is considered to violate the Code of Ethics of the Constitutional Court.