Constitutional Court Of Indonesia Research Articles

IMPLEMENTATION AUTHORITY OF THE CONSTITUTIONAL COURT IN THE INDONESIAN CONSTITUTIONAL LAW SYSTEM

This study delves into the historical evolution and significance of Indonesia's Constitutional Court, focusing on its speculated super authority and independent interpretation of the Constitution. Rooted in the global context of judicial review, the research traces the court's pivotal role back to discussions during the Draft Constitution at BPUPKI and its prominence in the 1945 reform era. With the primary goal of providing a comprehensive understanding of the Constitutional Court's journey, the study sheds light on its distinctive authority and pivotal role within Indonesia's legal and constitutional framework. The research explores the court's exclusive jurisdiction, making its decisions final and binding and limiting legal recourse for dissatisfied parties. By examining the court's historical development and legal foundations, the study elucidates the Constitutional Court's role as a guardian of the constitution. The research reveals that the court's significance stems from its establishment as a constitutional guardian during the 1945 reform era, gaining prominence with the Third Amendment to the 1945 Constitution. The court's exclusive jurisdiction solidifies its position as a final arbiter in constitutional matters, shaping the legal landscape and restricting avenues for legal redress. In conclusion, the Constitutional Court has evolved into a central player in constitutional interpretation, wielding exclusive jurisdiction and serving as a final arbiter, emphasizing its unique authority and indispensable role in shaping Indonesia's legal and constitutional framework.

Implementation Authority Of The Constitutional Court In The Indonesian Constitutional Law System

This study explores the evolution and significance of the Constitutional Court in Indonesia, examining its speculated super authority and unilateral interpretation of the Constitution. The research delves into the court's exclusive jurisdiction, rendering its decisions final and binding, thereby limiting legal recourse for dissatisfied parties. Grounded in the global development of judicial review, notably the landmark Marbury versus Madison case by John Marshall, the Constitutional Court's role is integral to constitutional interpretation. Originating from discussions during the Draft Constitution at BPUPKI and resurfacing during deliberations on the Draft Law on Judicial Power (UU Number 14 of 1970), the importance of the Constitutional Court gained prominence during the 1945 reform era. The Third Amendment to the 1945 Constitution solidified the court's establishment as a guardian of the constitution, shaping its pivotal role in constitutional interpretation in Indonesia. This research aims to provide a comprehensive understanding of the Constitutional Court's journey, its unique authority, and its crucial role in the country's legal and constitutional landscape

The Relationship between Political Configuration and the Characteristics of Judicial Power and the Implications for the Judicial Process in Indonesia to Realize Social Justice in Society

This article discusses the relationship between political configuration and the characteristics of judicial power exercised by the Supreme Court and Constitutional Court in Indonesia. In writing this article, a normative approach is used in the form of legal history and comparative law. There is a very close relationship between political configuration and the characteristics of judicial power in Indonesia so that it can influence judicial power in Indonesia. The form of political configuration intervention in judicial power is not implementing the decisions of the judiciary and replacing judges in the Supreme Court and Constitutional Court in Indonesia. This causes the level of public (society) trust in judicial power and law in Indonesia to decline drastically and of course, cannot realize social justice in Indonesia.

An ontological struggle: Islamic political theology and the criminalization of same‐sex sexuality in Indonesia

AbstractThis paper examines legal efforts to criminalize same‐sex sexualities between consenting adults by conservative Muslim movements in Indonesia, epitomized by the Constitutional Court of Indonesia's 2016 Judicial Review on the Indonesian Penal Code, continuous resistance to the Sexual Violence Law, and the current Indonesian Penal Code. Based on my ethnography of the Judicial Review's court transcript and other legal archives, I argue that the conservative Muslim movements’ legal effort to criminalize sexuality in Indonesia is an exercise of Islamic political theology revolving around a certain ontology of personhood concerning the relationships between “the human” and God, the state, and the nation. This ontology is apparent in their assertion about the intrinsic difference between sexual violence (“kekerasan seksual”) vs. sexual crime (“kejahatan seksual”). This paper aims to: (1) demonstrate that anthropological inquiries of ontologies can further develop the conceptual framework of political theology, especially in elucidating how ontological imposition of “the human” and its personhood plays a pivotal part in conservative movements’ repertoires in criminalizing sexuality; and (2) make use of Southeast Asian studies’ scholarships and cases to speak back to the broader discussion on the fissures in/of secular imaginaries and secularization processes.

Burden Proof Dilemma of Election Disputes in the Constitutional Court

Objective: This research study examines the legal underpinnings, the institutional framework of the electoral laws, and the jurisprudence developed by the Constitutional Court of Indonesia in resolving electoral disputes. The study aimed to investigate whether the dispute resolution mechanisms in our electoral system are rigid, costly, and inefficient and serve to hinder justice by emphasizing technicalities at the expense of substantive justice. The evidentiary process is essential in excavating facts and searching for truth in trials. The burden of proof is carried by the plaintiff to prove the legality of his or her suit. Theoretical Framework: Evidentiary law in the settlement of electoral cases in the Constitutional Court uses a model of legal processes in civil law. Evidentiary law is applied to facilitate the speedy settlement of cases and consider the evidence of the parties to the dispute. Method: The research approach method used in this research is legal normative research. This method helps examine the juridical standards contained in laws and court decisions. Furthermore, library research was conducted to obtain data from primary, secondary, and tertiary legal materials. Research Implications: According to the conclusions of this study, the improvement of burden-proof procedures will ensure justice and democratic elections in Indonesia. It is hoped that the ideas and issues raised in this paper will help can improve the implementation of burden-proof procedures in the settlement of election disputes at the Constitutional Court of the Republic of Indonesia. Results and conclusions: The settlement of election disputes depend on how the dependent proves his/her complaints, which should be improved by the Constitutional Court. Originality/value: Mobilizing the public to actively monitor elections is part of creating a fair-and-democratic election.

BALANCING RELIGIOUS TRADITIONS AND LEGAL NEUTRALITY: THE INDEPENDENCE OF INDONESIA'S CONSTITUTIONAL COURT

This article examines the independence of the Indonesian Constitutional Court in relation to religious issues, particularly regarding religious freedom and marriage regulations. Utilizing a socio-legal approach, the article analyzes five judgments and assesses whether the Court accommodates the aspirations of the religious majority while still maintaining neutrality. Results show that the Court's legal decisions tend to accommodate societal aspirations, but this does not necessarily indicate a lack of neutrality. The article asserts that the independence and neutrality of the judiciary are crucial in a rule of law state, and the Court must balance societal aspirations with its role as a legal decision-making body. The Court's independence should be evaluated based on the methodological consistency of its legal decisions. Overall, the article highlights the importance of judicial independence and neutrality in a rule of law state, with implications for Indonesia's Constitutional Court and other similar legal systems.

A Comparative Analysis of Constitutional Rights in the Gambia and Indonesia

While there is strong advocacy globally on human rights, little attention is paid to constitutional rights in some countries. Many constitutions contain constitutional rights, which are mainly referred to as the bill of rights in their constitutions. This piece presents a comparative exposition of the constitutional rights in The Gambia and Indonesia as constitutional states. Both countries are sovereign, and the strength and lethargy in enforcing these rights in these countries are of great significance in this research. In this research, empirical and normative research approaches are taken to examine both primary and secondary data. Primary materials like the constitutions of the two countries, legislation and court cases on constitutional rights are used. Secondary materials like articles and books are sufficiently used to support this research. Cognizant that a constitution is both a legal and political instrument, the Constitutional Court of Indonesia is undermined to a certain extent by both the House of Representatives and the Executive, and The Gambia’s sparing moments in disobeying High Court orders as regards constitutional rights, this research finally reaches an informed verdict that constitutional rights are different from human rights and approaches to their enhancement ought to be premised on citizenship. The inclusion of legal provisions in constitutions does not, ex cathedra, make institutions strong. Therefore, both countries need a paradigm shift in their national mechanisms to strengthen the institutions that enforce these rights despite the institutional differences in socio-political and socio-legal structures. To do this, the constitutional defense bodies must be comparatively autonomous from other institutions exercising the legislative, executive, and judicial functions to carry out such activities to increase individuals’ and States’ respect for the constitutions and the law and the constitutional rights guaranteed by these constitutions will make fresh and significant strides.

REALISASI DEMOKRASI DAN KONSTITUSI DALAM UPAYA PENGUATAN MAHKAMAH KONSTITUSI DI INDONESIA

The purpose of this study is to find out the extent of the role of the Constitutional Court in Indonesia's constitutional life when it is associated with the idea of constitutional democracy and legal state democracy. The method used in this study is normative legal research that focuses on positive legal norms. The Constitutional Court in Indonesia's constitutional system still needs to be given a record of improvement, especially regarding the ethical behavior of constitutional judges who often give information to the press about cases that will, are, or have been handled. It can often be witnessed, for example, that the Chief Justice commented on the rulings he had made. Supposedly, constitutional judges, let alone the Chief Justice, should be able to "live in silence" and place their verdicts as their representatives. Thus, there is no need for the Chief Justice to give additional information, clarification, or whatever his name may be, on the judgment he has made. Nevertheless, in general, the Constitutional Court has succeeded in carrying out the mandate of the constitution.

The Constitutional Court of Indonesia as a Post-Conflict Institution

The Constitutional Court of Indonesia as a Post-Conflict Institution

The Origin of the Indonesian Blasphemy Law and its Implication towards Religious Freedom in Indonesia

This article elucidates the chronology of the insertion of Undang-Undang Penistaan Agama (‘the Indonesian blasphemy law’) in Kitab Undang-undang Hukum Pidana (‘the Indonesian Criminal Code,’ later mentioned as KUHP). The law aims to prevent a religious elements; such as holy books, rituals, saints, etc. from offences. In the postauthoritarian Indonesia, this law has been used to ban individuals and minority groups by religious groups, state apparatus, and politicians. This has caused a dispute and debate in the society because there are several groups most of whom are intellectuals and human rights activists, who consider that the law is against Undang-Undang Dasar 1945 (‘the Indonesian Constitution 1945,’ later mentioned as UUD 45). They have urged the government through Mahkamah Konstitusi (‘the Constitutional Court of Indonesia,’ later mentioned as MK) to remove or revise it. This article attempts to answer the questions of how blasphemy law is formulated and then inserted in the Criminal Code and how it has defined religious freedom in Indonesia. Its aim is to understand the historical aspects of the law and the interpretation of religious freedom in Indonesia. The data of this article were collected through library research (books, newspapers, articles, CDs, etc.) and ethnography (observation and interviews). The results show that the Indonesian government has struggled to locate the definition of religious freedom and tend to be inconsistent in dealing with dispute of blasphemy law. In many cases, it ends in favor with the more powerful voice in public.

Final and Binding Essence on Constitutional Court’s Judgment in Judicial Review

Mahkamah Konstitusi, has specific characters, one of the typical characters is the final and binding judgement. The reality is many judgements of the constitutional court are not complied with and tend to be ignored by the legislature. Then the petitioner who feel that their constitutional rights have been violated do not have instruments to fight for their constitutional rights that have been violated by the legislators. Based on the statement above, there are problems which is studied, what underlying the basic consideration of the formation of Constitutional Court in Indonesia? And what is the essence of the final and binding of Constitutional Court’s judgements? The aim of this study is to determine and comprehend the essence contained in final and binding nature of the Constitutional Court’s judgements, especially in judicial review of UUD 1945. The method of law study used was normative law research method which is law research from internal perspective with the object of the study was law norms. It can be concluded that the basic rationale of MK formation in Indonesia, from political side, the existence of MK is required to balancing the legislators’ power. From the law side, the existance of MK is the consequence from the change of MPR supremacy become constitution supremacy. The essence of final and binding Constitutional Court’s judgement is the stand- alone judgments, so that the judgement cannot be taken by legal action. Constitutional Court judgement is erga omnes which means binding on other parties, including state administrator.

Multilayered Oversight: Electoral Administration in Indonesia

AbstractElectoral administration in Indonesia is complex. The Electoral Commission (Komisi Pemilihan Umum) is responsible for planning and running five-yearly elections for one national and two regional legislatures, and one additional national regional representative body, as well as direct presidential, gubernatorial, mayoral and regent elections. Because candidates and parties often have significant financial stakes in their outcome, these elections are hotly contested and the results quite commonly disputed, including in Indonesia's Constitutional Court (Mahkamah Konstitusi). Electoral contestants often point to mistakes in administration and vote counting, which appear to be natural consequences of the great logistical challenges these elections present. For example, on 17 April, 2019, well over 150 million citizens attended one of over 800,000 polling stations to vote for candidates to fill 19,817 legislative seats in national and subnational parliaments. Many of these elections are said to be marred by attempts by candidates and their parties to gain illegal advantage, whether through misuse of incumbency or vote buying. There is also said to be much potential for corruption amongst electoral administrators themselves in registering candidates, verifying parties, procuring equipment for polling stations, and counting and tallying votes on election day. Given the potential of mistakes and illegality to jeopardise the legitimacy of election results, lawmakers in Indonesia have created multi-layered oversight mechanisms to oversee the planning and running of the elections by the Electoral Commission, as well as to oversee the Election Supervisory Board (Bawaslu, Badan Pengawas Pemilihan Umum) itself, which is charged with supervising that Commission. This article examines the work and performance of these institutions, and the Electoral Administration Honour Council (DKPP, or Dewan Kehormatan Penyelenggara Pemilu), which hears allegations of breaches by the Commission and the Board.

The urgency of the constitutional preview of law on the ratification of international treaty by the Constitutional Court in Indonesia

The debate regarding the possibility of the Law on the Ratification of International Treaty that can be reviewed always raises pros and cons. With normative research methodology, this research examines the urgency of a constitutional preview of the Law on the Ratification of International Treaty by the Constitutional Court in Indonesia. The importance of the law on the results of international treaty ratification to be tested is to ensure that its substance does not contradict the 1945 Constitution of the Republic of Indonesia. The involvement of the Constitutional Court in conducting a constitutional preview before the parliament will provides the Court's opinion regarding the constitutionality of international agreements can be taken into consideration for the parliament to provide approval or not against international treaties that will be ratified by law.

The Challenges and Opportunities of the Constitutional Court Decision Implementation on Recognition of the Indigenous Religions in Indonesia

The Constitutional Court of Indonesia has held the followers of the indigenous religion (the Penghayat) can have their own religious identity on their identity card (ID) in 2016. The 1945 Constitution of Indonesia mentions a non-discriminatory principle which has been applied by the Constitutional Court to this case. However, the implementation of the Constitutional Court decision will face challenges and opportunities on the field. The author has used of both normative and empirical methodology by providing related legal information and the result of the interview with the local leader of the indigenous religion as sources of analysing the issues. As the result of the research shows the following challenges for the implementation of the Constitutional Court decision ; a. unification of the laws, b. lack of affirmative action for the followers of the indigenous religions, c. Lack of the updated and integrated administrative data base of the citizens with the Constitutional Court decision, d. religiously and ethnically based politics effecting the decision of public officials to accommodate public services for the followers of the indigenous religions while the following opportunities of the implementation of the Constitution Court decision are the constitutional recognition and protection of the indigenous community, the existence of the National Ombudsman Commission, the rule law principle in the 1945 Constitution, final and legally binding status of the Constitutional Court decision.

IDEALISME CONSTITUENDUM MAHKAMAH KONSTITUSI DALAM PENGUJIAN UNDANG-UNDANG TERHADAP UNDANG-UNDANG DASAR

Abstract Judicial review is one of the authorities of the Constitutional Court most often exercised. This research examines the background of the establishment of Constitutional Court in Indonesia and the ideal construction of the constituendum for the Constitutional Court in implementing the judicial review. This normative research uses regulatory and conceptual approach. The results showes first, the authority to judicial review should be placed in one institution, namely the Constitutional Court, since the continental tradion of laws and regulations is systematic, hyrarchial and pyramidal in nature. Second, the Consttutional Court’s decisions that are often ignored by the law forming institutions have resulted in the Law annulled by the Court not immediately followed up with the issuance of a replacement law. Third, judicial review should not be limited to the statute being reviewed, because the statute concerned are, more likely, related to the other statutes. And fourth, the Constitutional Court’s decisions should be regarded as constitutional jurisprudence and become referrences for the theory of constitution in general.

Organizational Improvement of the Indonesian Constitutional Court: Reflections on Appointment, Supervision, and Dismissal of Justices

Since its establishment in 2003, the Constitutional Court of Indonesia (the CCI) has been playing an important role in securing basic democratic order, the rule of law and fundamental rights protection in Indonesia. Despite its achievements, however, the Indonesian constitutional adjudication system also has raised public comments and criticisms, due to deficiencies in the organizational system, including appointment, supervision, and dismissal of constitutional justices. The aim of this article is to evaluate the Court’s organizational system by finding the problems and challenges faced by the Court. To give maximum protection to the fundamental rights of citizens in Indonesia, it is imperative that the CCI should improve its role and performance, while the current organizational problems can be solved using a comparative study with constitutional courts in other countries. The article proceeds to offer proposals for improving the CCI’s organizational system, such as improving the justices’ appointment system and strengthening the ethics supervisory system of justices.

CONSTITUTIONAL RECOGNITION OF “BELIEFS” IN INDONESIA

AbstractConstitutionally, Indonesia is a state “based on Almighty God,” but the Constitution does not specify any religions or belief systems. This is left to statute, which establishes six official religions that the state supports and helps administer: Islam, Protestantism, Catholicism, Hinduism, Buddhism, and Confucianism. But Indonesia is home to a rich kaleidoscope of other beliefs (kepercayaan), ranging from indigenous practices predating the arrival of many of the official religions to new age spiritual movements. The constitutional status of these beliefs is contentious, and their followers have long complained of government discrimination, primarily in matters of civil registration services, education, and employment. This reinforces the view, propounded by some adherents to official religions, that beliefs are inferior to official religions. This view, in turn, perpetuates the socioeconomic and cultural marginalization of belief-holders. In 2017, Indonesia's Constitutional Court was asked to examine the constitutional status of these beliefs. Its decision appears to constitutionally recognize these beliefs; accordingly, it has been heralded as an advance for religious freedom in Indonesia. Indeed, it has spurred limited administrative reforms to remove discrimination in several parts of Indonesia. But the Court's decision is muddled and inconsistent. It does not clearly establish that beliefs enjoy the same level of constitutional protection as do religions—if they are, in fact, constitutionally protected at all. The likely result is continuing faith-based discrimination and marginalization in Indonesia.

Kewewenangan Mahkamah Konstitusi dalam Pembubaran Partai Politik di Indonesia

One of the authorities of the Constitutional Court is to dissolve political parties on the basis that the political parties have principles, ideology, purposes and have committed violations that are contrary to the Pancasila and the 1945 Constitution. The purpose of this paper is to highlight the authority of the Constitutional Court in the dissolution of the political parties in Indonesia in the perspective of Islamic law. The conclusion of this paper is that the authority of the Constitutional Court in the dissolution of the political parties in the review of Islamic law is permissible as long as the political parties have already had principles, ideology, objectives and have violated the rules of a country. This, in Islam, can be claimed that the political parties have committed bughat or defiance of the state. In this case, the political parties are considered not to obey to a legal leader. Furthermore, the Constitutional Court in Indonesia, with its authorities, has in common or resembles a judicial institution in Islam called Wilayah al-Mazalim.

EQUALITY OF SUFFERAGE FOR PEOPLE WITH MENTAL DISORDERS IN MALANG CITY

Constitutional Court of Indonesia in 2015 established Constitutional Court's DecisionNumber 135 / PUU-XIII / 2015 that revoked the provisions of Article 57 paragraph 3letter a of Indonesian Law Number 8 of 2015 concerning Amendment of Law Number 1concerning the Stipulation of Government Regulation in Lieu of Law Number 1 of 2014which the substance prohibited person with disabilities for voting in election. Then, LawNumber 7 of 2017 concerning General Elections, which exclusively gave political rightsfor people with disabilities to implement their political rights.Qualifications for people with mental disabilities in elections of The ConstitutionalCourt decides that the phrase "mental disorders/ memory impairment" must beinterpreted as "experiencing mental illness and/ or permanent memory impairmentwhich according to mental health professionals, has abolished one's ability to vote inelections". It means that sufferers with mental disorders and/ or impermanent memoryimpairment must still be registered as voters and they have the opportunity to use theirvoting rights in elections.Equality of political rights for people with mental disorders (Orang Dengan GangguanJiwa (ODGJ)) in elections is very important because general election gives opportunity to increase participation and change public perception for the ability of people with disabilities. As the result, people with disabilities can have stronger political voice andthey are recognized more as equal citizens. Moreover, this research was in category ofnormative research with normative juridical approach. In conclusion, the equality ofpolitical rights for people with mental disorders (orang dengan gangguan jiwa(ODGJ)) in elections is very important because general election gives opportunity toincrease participation and change public perception for the ability of people withdisabilities. As the result, people with disabilities can have stronger political voice andthey are recognized more as equal citizens.

KEDUDUKAN DAN WEWENANG MAHKAMAH KONSTITUSI DALAM SISTEM HUKUM KETATANEGARAAN INDONESIA

Fundamental changes in the 1945 is the amendment of Article 1 paragraph (2) as follows: "Sovereignty belongs to the people and carried out according to the Constitution". Change the 1945 Constitution has given rise to the Constitutional Court. By the Constitutional Court, the constitution guaranteed as the supreme law that can be enforced as it should. The Constitutional Court in its development, it is feared will be the agency that has authority super body.Particularly in resolving the matter related to its authority, the Constitutional Court can unilaterally interpret the Constitution without being questioned, other than that produced the Constitutional Court ruling is final and binding, so that when there is one party who feels aggrieved by the decision of the Constitutional Court cannot make the effort for other law.From the approach used in this study is normative juridical, because the study was conducted by examining library materials or secondary data relating to the status and authority of the Constitutional Court in constitutional legal system of Indonesia. Specifications of this research is descriptive analysis, which is expected to give a detailed overview, systematic, and comprehensive on all matters relating to the object to be examined. The data used in this study is secondary data, it means the data obtained from library materials collected through the study of literature and documentary studies, which are then analyzed qualitatively. The conclusion of this study is that the formation of the Constitutional Court in Indonesia is inseparable from the development of judicial review occurring in several countries in the world, especially during the implementation of judicial review which was pioneered by John Marshall in Marbury versus Madison case.Thinking about the importance of the Constitutional Court in Indonesia has emerged during the discussion of the draft Constitution in BPUPKI, then the idea of judicial review of the need to re-emerge during the discussion draft Judicial Power Act (Act No. 14 of 1970). At the time of the discussion of the 1945 changes in the era reformation, the opinion of the importance of the Constitutional Court appeared. Ultimately, the Third Amendment to the 1945 to be of the Constitutional Court, which serves as the guardian of the Constitution and constitutional interpretation.