Constitutional Court Of Indonesia Research Articles

Constitutional Review of ASEAN Charter and Maastricht Treaty

This journal will discuss how the role of constitutional courts in Indonesia and France in reviewing the constitutionality of the ratification law of an international treaty. While both Indonesia and France possess a Constitutional Court/Council, both of them have different principles regarding the constitutional review of international treaties. This paper uses normative research with a descriptive analysis approach. We found that in practice, both Indonesia and France can constitutionally review the ratification of an international treaty. Although the Constitutional Court in Indonesia has never annulled the ratification of an international treaty, there remains the possibility of a treaty being ratified and later revoked by the process of judicial review. Meanwhile in France, while judicial review can conflict with the Constitution, in the case of the Maastricht Treaty this led to constitutional amendments to accommodate Maastricht Treaty with the Constitution instead of annuling the treaty altogether

Image Framing of Indonesia's Constitutional Court in Tempo.co News (18-27 October 2023)

The Constitutional Court of the Republic of Indonesia (MK) plays a crucial role in reviewing laws against the 1945 Constitution and resolving election disputes, ensuring adherence to constitutional principles. Tempo.co, a prominent media outlet, has extensively covered the MK, especially following the recent controversy over the Court's ruling on age limits for presidential and vice-presidential candidates. This research examines how Tempo.co frames its coverage of the MK using Robert N. Entman’s framing analysis model, alongside agenda-setting theory and media reality construction theory. Applying a qualitative methodology, the study analyzes Tempo.co’s news articles from October 18 to October 27, 2023. The analysis reveals that Tempo.co employs various framing techniques consistent with Entman's model, which influences public perception through agenda-setting by emphasizing specific aspects of the MK’s activities. Additionally, the coverage constructs a particular narrative about the MK's role and decisions. To ensure data validity, thorough checks were performed. Findings indicate that Tempo.co’s headlines generally maintain neutrality and do not exhibit overt political bias, focusing on the institution’s functions. This research offers insights into how media framing, through Entman's model, agenda-setting, and reality construction, shapes the portrayal of significant constitutional issues and affects public understanding of the MK.

OVERCOMING DUALISM: THE IMPORTANCE OF CONSOLIDATING LAW AND REGULATION TESTING IN INDONESIA

This article highlights the significance of unifying the testing of all laws and regulations under the authority of the Constitutional Court in Indonesia. Currently, the testing of laws and regulations is divided between two state institutions, namely the Constitutional Court and the Supreme Court, resulting in dualism in the evaluation of laws and regulations. Through a normative-juridical approach, examining existing laws and theories, this article reveals that the dualism of testing laws and regulations is a problem that needs to be addressed. The problem arises from the differences in decision outcomes between the Constitutional Court and the Supreme Court. The two institutions employ different benchmarks for material testing, with the Supreme Court relying on legislation and the Constitutional Court drawing on the 1945 Constitution of the Republic of Indonesia. The importance of unifying the testing of all laws and regulations lies in the fact that the unintegrated testing system causes confusion, creates institutional conflicts between the Constitutional Court and the Supreme Court, and results in a lack of synchronization between laws and regulations from lowest to highest. Therefore, it is essential to conduct integrated testing of all laws and regulations, with the Constitutional Court serving as the authority responsible for this task. Notably, an increase in the number of Constitutional Court judges is necessary to achieve better development of laws and regulations testing in the future.

Model for resolving election violations through Indonesian Election Body and Constitutional Court

This study formulates a model for resolving disputes over election violations through the Election Supervisory Body and the Constitutional Court in Indonesia. This research analyses juridical and normative theories, policies, and legal decisions, as well as studies of cases of election violations in 2014 and 2019. This research method uses qualitative research with a grounded theory approach and a normative juridical approach. The data sources comprise primary and secondary legal materials. The results of this study show that 1) Problems with violations of the electoral process and disputes over election results have not been resolved properly. 2) The model of resolving violations of the electoral process and disputes over election results is with a settlement model approach through the Application of the Critical Attitude Model of Public Militancy and Law Enforcement Militancy by the Election Supervisory Body and the Constitutional Court.

The Constitutional Court and Forest Tenure Conflicts in Indonesia

With regard to access to land and forest resources, forestry legislation maintains an imbalance between the state, corporations, and local communities. Since the colonial era, forestry regulation has facilitated restrictions on the ability of local communities to benefit from land and forest resources, while also concentrating power in the hands of the state. To uphold state ownership, forestry law criminalizes customary practices, putting local communities at risk. In this sense, conflicts between local communities, corporations, and government agencies arise because of structural issues in the legal framework of laws and regulations that undermine the land rights of local communities. The establishment of the Constitutional Court in Indonesia in 2003 has enabled local communities and NGOs to challenge the Forestry Law. They use the Constitutional Court to support the resolution of forestry tenure conflicts. This article examines the extent to which the Constitutional Court can contribute to the resolution of forest tenure conflicts through judicial review of forest laws. This article discusses twelve Constitutional Court decisions regarding judicial review of the Forestry Law and the Law on Forest Destruction Prevention and Eradication. We found that the Constitutional Court has made a positive contribution to addressing the deficiency of forest legislation regarding local and customary land rights. The implementation of Constitutional Court’s ruling is not, however, a matter of self-implementation. The ruling of the Constitutional Court will only have significance if it is continuously promoted by various stakeholders in support of forest tenure reform to facilitate the resolution of forest tenure conflicts.

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.