Constitutional Court Decision Number Research Articles

Government Regulation Substituting the Law on Job Creation in the Perspective of Constitutional Law

The debate over the Government Regulation in Lieu of Law on Job Creation has not ceased even though it has become an official law. Pros and cons persist due to its perceived deviation from Constitutional Court Decision Number 91/PUU-XVIII/2020, issued on November 25, 2021. This research aims to describe that regulations should not contradict one another, especially when there is already a Constitutional Court decision. Regulations should be made through a legitimate process without resorting to legal shortcuts. The research method used is a normative legal research with a qualitative approach. There is ample time available to follow the proper legislative process, yet shortcuts are taken by issuing Government Regulations in Lieu of Law, which are later ratified as laws. The research implies that despite the enactment of these regulations, there is significant resistance due to their divergence from the judicial review results at the Constitutional Court. As a result, this research suggests the necessity of revising relevant laws to include sanctions for failing to comply with Constitutional Court decision.

Kepastian Hukum Kreditur Preferen Dalam Upaya Parate Executie Perjanjian Fidusia Menurut Undang-Undang Nomor 42 Tahun 1999 Tentang Jaminan Fidusia

Fidusia comes from the word fides means belief. Juridically, the Fiduciary Giver has transferred his material rights to the Fiduciary Giver gives the Fiduciary Giver the right to control the fiduciary guarantee object. Based on UUJF, it has been regulated to the execution of the Fiduciary Guarantee Object if the giver of fiduciary fails to promise by the execution of the executorial title. Through the decision of the Constitutional Court Number 18/PUU-XVII/2019 that in order to carry out an execution if the debetor does not wish to voluntarily submit the Fidicuary Guarantee Object, it must be requested to the Chair of the Court and the determination of breach of contract must have an agreement between creditors and debtors or through legal remedies. Then questioned the legal certainty of preferred creditors in the efforts of the parate executie. This legal research is a normative legal research. The analytical method for this type of normative legal research is a prescriptive method using a statute approach and a case approach. This study aims to determine the legal certainty of preferred creditors in the efforts of parate executie of the fiduciary agreement based on UUJF and the legal consquences and judges’ considerations which are the basis for deciding the case application for the Constitutional Court Decision Number 18/PUU-XVII/2019. The result of the research conclude that legal certainty legal certainty has been stated in UUJF for creditors by executing Fidicuary Guarantee if the debtor fails the promise. The certainty is included in order to “Demi Keadilan Berdasarkan Ketuhanan Yang Maha Esa” means it has the same executorial power as court decision has obtained permanent legal force. However, in reality the execution process cannot be carried out automatically. so that the execution process becomes longer and it is quite difficult to achieve the executive parate. The Constitutional Court emphasizes on an agreement on when the breach of contract between creditors and debtors occurs so that creditors can carry out the parate executie. So that it is often used by the Fiduciary to take refuge in the interpretation of the Constitutional Court, which is actually the default clause agreed in the agreement.

UNDERSTANDING THE DECISION OF THE CONSTITUTIONAL COURT NUMBER 90/PUU-XXI/2023 IN THE PERSPECTIVE OF CIVIL LAW AND COMMON LAW PERSPECTIVES

This research discusses the understanding of the Constitutional Court Decision Number 90/PUU-XXI/2023 in the perspective of Civil Law and Common Law. The decision has a significant impact on the Indonesian legal system, because it contains interpretations and implications that are relevant to both legal systems. significant differences which are then applied to adherent countries in accordance with the spirit of law enforcement. As for Indonesia, the use of the legal system is more inclined to the Civil law legal system even though it also implements several rules in the Common Law legal system, so that the application of the legal system in Indonesia is more suitable to be called prismatic. The results of this research are expected to contribute to the development of legal thinking in Indonesia and become an important reference for legal practitioners, academics, and policy makers in drafting or revising relevant laws.

THE DEATH PENALTY AS A MODEL TO PROVIDE A DETERRENT EFFECT AGAINST PERPETRATORS OF PREMEDITATED MURDER

The execution of the death penalty in cases of premeditated murder is, in fact, not easy. The old Criminal Code did not define the terms and conditions for premeditation elements. The purpose of this research is to analyze Death Penalty in Indonesia and The Urgency of Death Penalty in Creating A Deterrent Effect in Premeditated Murder. The method used in this legal research is normative juridical. Normative juridical research is research that is focused on examining the application of rules or norms in positive law. Indonesia is one of the countries that still maintain death penalty because death penalty is a criminal sanction that is still relevant in preventing and eradicating serious crimes. This can be seen in Constitutional Court Decision Number 2-3/PUU-V/2007. The provisions on death penalty for perpetrators of premeditated murder in the Law of the Republic of Indonesia Number 1 of 2023 concerning the Criminal Code have made it difficult for death penalty to be imposed on perpetrators of premeditated murder.

Analisis Yuridis Terhadap Undang-Undang Nomor 6 Tahun 2023 Tentang Penetapan Peraturan Pemerintah Pengganti Undang-Undang Nomor 2 Tahun 2022 Tentang Cipta Kerja

Constitutional Court Decision Number 91/PUU-XVIII-2020 states that Law Number 11 of 2020 concerning Job Creation is conditionally unconstitutional. This is the basis for the government to take action by establishing Government Regulation in Lieu of Law Number 2 of 2022 to replace Law Number 11 of 2020. However, the action taken by the government has drawn a lot of criticism from the public because the government is considered not careful and too hasty in taking action by establishing government regulations in lieu of the law. Consider whether the government takes appropriate action by looking comprehensively at the presence or absence of force crunch which is the basis for the establishment of government regulations in lieu of law in accordance with Article 22 Paragraph (1) of the 1945 Constitution.

The Concept of Legal Certainty in The Final and Binding Decision of The Election Manager Honorary Council (DKPP)

The final and binding phrase on the DKPP decision in the provisions of Article 458 paragraph (13) of the Election Law was submitted for judicial review through the Constitutional Court decision Number RI 32/PUU-XIX/2021. In the provisions of Article 458 paragraph (13), the phrase final and binding means that the DKPP's decision can’t be submitted for legal effort. However, from the case of Evi Novida Eka Ginting, the Election Organizer Ethics Council (DKPP) decision can be submitted for legal effort. This has implications for the legal certainty of the final and binding phrase in the provisions of Article 458 paragraph (13). This research aims to analyze the final and binding decisions of the Election Organizer Ethics Council in terms of the Constitutional Court Decision Number.32/PUU-XIX/2021 and Law Number 7 of 2017 concerning Elections and to analyze the Election Organizer Ethics Council decisions. which is final and binding in terms of the aspect of legal certainty. The research method used is normative juridical. Based on the results of the research and discussion, First, viewed from the Constitutional Court decision no. 32/PUU-XIX/2021 the phrase "final and binding" in Article 458 paragraph (13) can be an object in the Administrative Court. What can be submitted is a legal effort, a lawsuit to the Administrative Court (PTUN) to cancel the Presidential Decree. Reviewed according to Law No.7 of 2017 concerning General Elections, Article 458 paragraph (13), the Election Organizer Ethics Council (DKPP) decision is final and binding, this means that the decision cannot be made to legal effort and directly can be held. Second, according to the principle of legal certainty, final and binding phrases cause legal uncertainty. Because the phrase is final and binding on the DKPP decision, it is interpreted that the Election Organizer Ethics Council (DKPP) decision can’t be made due to legal effort and must be held. So the final phrase in Article 458 paragraph (13) should be removed cause the meaning has multiple interpretations.

Perlindungan Hukum Hak Pilih Penyandang Disabilitas Mental dalam Pemilihan Umum di Indonesia

People with mental disorders being involved in the 2024 election is an interesting topic of discussion. In this context, there are many pros and cons. The question arises as to whether those with mental disorders have the right to vote. This is interesting to research and review. This article aims to analyze the right to vote for people with mental disabilities in the 2024 elections. Apart from that, this research also analyzes the Constitutional Court decision Number 135/PUU-XIII/2015. This research departs from a normative study with a statute approach. This approach is used to view and analyze legal aspects related to the problems in this research. This article argues that the legal regulation of the right to vote in elections for disabled people with mental disorders is regulated in Article 4 paragraph (2) letter b and Article 4 paragraph (3) General Election Commission Regulation (PKPU) Number 11 of 2018 concerning the Compilation of the Domestic Voter List. The General Election Organizers were then revised with PKPU 37 of 2018, which deleted the provisions of Article 4 paragraph (2) letter b and Article 4 paragraph 3 in order to comply with the decision of the Constitutional Court. People with persistent mental or memory disorders do not have the right to vote in elections.

Dilemmatic of the Proofing Testimonium De Auditu: Indonesian Legal Studies

The proof of testmonium de auditu cannot be used in criminal cases but the constitutional court's decision number 65/PUU-VIII/2010 gives the position of witness de auditu which creates a new dilemma in criminal trials. the method used is normative with a legal approach and a conceptual approach. The results showed that testmonium de auditu statement actually did not have the same evidentiary power as a factual witness, but because of the constitutional court decision that acknowledged the evidence of testmonium de auditu witness, the statement could be considered which in this case can be used as evidence in criminal trial accordance with what is in the criminal procedure code. The importance of witnesses does not lie in their own statements, but in the relevance of their statements to criminal cases that are being processed so that judges in assessing a criminal case do not rely solely on belief but must be based on the search for material truth in accordance with legal objectives in KUHAP. Keywords: Evidence, Testimonium De Auditu, Criminal Procedure Code (KUHAP).

INOVASI STRATEGI BISNIS PEMBIAYAAN LEASING PASCA PUTUSAN MAHKAMAH KONSTITUSI NOMOR 18/PUU-XVII/2019 DAN NOMOR 2/PUU-XIX/2021

The Constitutional Court's decision has degraded the executive power of fiduciary guarantees so that the creditor's position no longer has legal certainty. This research examines and analyzes innovation in financing business strategies after Constitutional Court Decision Number 18/PUU-XVII/2019 and Number 2/PUU-XIX/2021. The conceptual approach is used in this research, which is legal research with a perspective. Deductive syllogism is used as a technique for analyzing primary and secondary legal materials as well as data that can be collected through literature study. The results of this research show that financing agreements, especially leasing, have been proven not to fulfill one of the elements of the requirements for the validity of the agreement because they violate the law so they are null and void, the Constitutional Court's decision degrades the executorial power of the fiduciary guarantee certificate so that the creditor's position no longer has legal certainty, based on the principle Freedom of contract is a business strategy that can provide legal certainty for creditors.

Decision of The Constitutional Court Regarding the Term of Office of The Head of The Corruption Eradication Commission

Purpose: The aim of this research is: To find out the term of office of the leadership of the Corruption Eradication Commission in Indonesia and the legal considerations of Constitutional Court Decision No.112/PUU-XX/2022 regarding the term of office of the leadership of the Corruption Eradication Commission. Methode: This research was conducted using normative legal analysis, with the approach method being the statutory regulation approach. An analysis of the results of this research is carried out by criticizing, supporting, or providing comments, then making a conclusion on the research results with your thoughts and the help of a literature review. Result: Constitutional Court Decision Number 112/PUUXX/2022, the term of office of the KPK leadership will be 5 (five) years and they can be re-elected for only one term of office. Conclusions: The Constitutional Court granted the request for an extension of the term of office of the KPK leadership with considerations, namely: Firstly, there is discriminatory and unfair treatment towards the KPK when comparing it with other independent government institutions which have the same constitutional importance. Firstly, there is discriminatory and unfair treatment towards the KPK if it equates it with other independent government institutions which share constitutional importance, namely having a term of office of 5 years. Second, because based on the principles of benefit and efficiency, the 5-year term of office for the leadership of the Corruption Eradication Committee is much more useful and efficient so that it can correspond to one term of office for the president.

Perbedaan Pandangan Terhadap Pembatasan Hak Dipilih Antara Putusan Mahkamah Konstitusi Dengan Putusan Mahkamah Agung

In general elections, the public has the right, namely, not to vote, and the right to be elected. The right to be elected is the right of citizens to be elected as members of deliberative bodies or representatives of the people in a general election. Article 240 paragraph (1) letter g of the General Election Law regulates restrictions on the right to vote for former corruption convicts. Regarding the norms in this article, the Constitutional Court and the Supreme Court have different views. This is formulated in the Constitutional Court Decision Number 87/PUU-XX/2022 and the Supreme Court Decision Number 46P/HUM/2018. This article analyzes the views of Constitutional Justices and Supreme Court Justices regarding the norms in article 240, paragraph (1) letter g. The purpose of this article is to find out how voting rights are limited for former corruption convicts. This article uses a normative juridical research method. The research results found that first, restrictions on the right to vote for former convicts may be carried out in the interests of ensuring the freedom of disadvantaged groups. Second, in deciding a decision, the judge is obliged to explore, follow and understand the legal values ​​and sense of justice that exist in society as well as pay attention to the juridical aspect.

Law Enforcement Strategies and Policies for Money Laundering from Predicate Crime in Fisheries

Law enforcement on money laundering originating from criminal acts in the field of fisheries (Illegal Fishing) after the Constitutional Court Decision Number 15/PUU-XIX/2021, which is not only the duty of investigators in the field of fisheries, but also the public prosecutor and judges in court who will process the results investigation at trial level. For this reason, each of these law enforcement officers must have the same perception in law enforcement as stipulated in the laws and regulations in the field of fisheries. This paper aims to find out the investigation of money laundering where the predicate crime is in the field of fisheries related to the differences in the respective procedural law and to find out the authority of the Special Fisheries Court to adjudicate money laundering cases where the predicate crime is in the fishery sector. This research used normative or doctrinal methods. The recommendation from the author is that the investigation of money laundering cases where the predicate crime is in the field of fisheries is carried out by separating the case files of criminal acts in the field of fisheries from the files of investigations of money laundering crimes but the investigation is still carried out in parallel. Regarding the authority of the special court for fisheries, judges at the special court for fisheries can interpret the law to mean that based on Article 71 of the Fisheries Law, the special court for fisheries has the authority to examine, adjudicate, and decide on money laundering cases where the predicate crime is in the field of fisheries.

Reformulation of Public Participation in Fast- Track Legislation in an Open Cumulative National Legislative Program

One of the factors contributing to the suboptimal implementation of “meaningful participation” is the exploitation of legal loopholes to expedite the creation of open cumulative draft laws (RUU). This issue is further complicated by Constitutional Court Decision Number 90/PUU XVIII/2020, which states that the formation of open cumulative draft laws does not necessitate general public participation, thereby posing a distinct challenge. In the context of this matter, by employing a normative legal research method, the author examines the urgency of public participation in the development of open cumulative draft laws through a “fast track” legislative process. The study’s results cover three main topics: (1) the mechanism of open cumulative draft law design and its relationship to “fast track” legislation; (2) the legal implications stemming from the Constitutional Court’s considerations regarding public participation in the creation of open cumulative draft laws; (3) the essence of integrating public participation into open cumulative draft laws using the “fast track” legislative method.

Disregarding the Constitutional Court Decision Concerning the Prohibition of Concurrent Deputy Minister Positions

The presence of the deputy minister position in the Indonesian government system has been a constitutional issue, both in its appointment and the issue of the prohibition of holding multiple positions. This article discusses Constitutional Court Decision Number 80/PUU-XVII/2019, which provides clarity on the constitutionality of the appointment of deputy ministers and the prohibition of holding multiple positions, including as commissioners or directors in state-owned or private companies. Despite this decision, the analysis indicates that the prohibition of holding multiple positions for deputy ministers is still disregarded, as some deputy ministers currently serve as Commissioners in State-Owned Enterprises (SOEs). This research uses a normative approach by analyzing secondary data. The result is that the Constitution is ignored because the Constitutional Court Decision regarding the prohibition of holding multiple positions for deputy ministers is not implemented. To address this non-compliance, if deputy ministers continue to hold positions as commissioners, the President should be able to dismiss them based on the State Ministry Law and Constitutional Court Decision, and impose sanctions in the form of an obligation to compensate the state’s financial loss incurred during the concurrent positions.

Positive Legislature Decisions by the Constitutional Court

The shift in the role of the Constitutional Court, which has tended tobecome a positive legislator in the last 11 years, began with the existenceof Constitutional Court Decision Number 48/PUU-IX/2011, which, in itsessence, eliminated the limitations on the role of constitutional judges inrendering decisions with a regulatory nature. Consequently, in the last11 years, out of 198 accepted decisions, 107 positive legislative decisionswere identified, and when presented, these positive legislative decisionsconstituted a majority of 54% of the total decisions. The practice ofpositive legislation itself appears to be ineffective, primarily due tothe fact that out of the total 107 decisions, only 26 decisions wereimplemented by the addressees of the decisions. Through normativejuridical research using a statute approach and conceptual approach,this study is focused on understanding why the practice of positivelegislation is not optimal. This is because there is no legal basis, it doesnot fall within the Constitutional Court’s domain to decide cases witha regulatory nature, and there is no obligation for the addressees ofthe decisions to implement positive legislative decisions.

Age Limitations for Presidential and Vice Presidential Candidates Post Constitutional Court Ruling Number 90/PUU-XXI/2023 A Democratic Perspective

The constitutional right to vote or be elected is a realization of a democratic government system. Freedom exists for every citizen or government to be able to participate in the advancement of a nation. Nominating the head of state in Indonesia is a big part of political participation for every citizen nominated by their political party to be able to run for president. However, in Indonesia, certain conditions must be met for citizens running for President, one of which is a minimum age limit. This age restriction became an academic debate until the Petitioner was tested at the Constitutional Court, where he had potential disadvantages, namely not being able to run for president even though he had experience or expertise in the world of government. This research is legal research with towards statutory case analysis. The results of this research explain that the age restrictions for presidential nomination requirements in Indonesia are not only bound by formal provisions, but the Court provides an alternative consideration regardless of the age of a presidential candidate who can nominate if they have experience or are currently serving as regional heads. The implications of the Constitutional Court's Decision Number 90/PUU-XXI/2023 regarding the alternative in the form of age quality for Presidential candidacy wishes of the Community in performing their political rights

The role of PT. Raharja Services in Road Traffic Accidents (Study of Constitutional Court Decision Number 88/PUU-XV/2017 Regarding Review of Law Number 34 of 1964 concerning Compulsory Road Traffic Accident Insurance Funds)

The approach used in this research is normative juridical. using secondary data consisting of primary, secondary and tertiary legal materials, which are then analyzed using analytical descriptive analysis. The results of this research, PT. Jasa Raharja has carried out its responsibilities in accordance with the regulations that regulate it, but based on the rejection of the application as a whole by the judge in the Constitutional Court Decision No. 88/PUU-XV/2017 concerning Review of Law Number 34 of 1964 concerning Compulsory Road Traffic Accident Insurance Funds, it still has not been implemented. there is a regulation in the form of a law (rechtvacuum) regarding compensation for victims who experience a single accident, payment of compensation for victims who experience a single accident is only through Ex-Gratia which is the limited authority of PT. Jasa Raharja so that the presence of the state in providing social protection for single accident victims is very necessary.

Executability of the Constitutional Court's formal testing decision: Indonesia's Omnibus Law review

This legal writing analyses the incoherence in the use of Government Regulations in Lieu of Laws as an implementation of the Constitutional Court's Decision on the Formill Test of Laws by using Constitutional Court Decision Number 91 / PUU-XVIII / 2020 as a study material and trying to describe future precedents to the formal test decision, which Perpu continues to improve. It uses case, statute, and conceptual approaches to conduct normative legal research. The study found that: a. The Constitutional Court Decision Number 91/PUU-XVIII/2020 declared the Job Creation Law conditionally unconstitutional because its formation was not based on reasonable and correct procedures for the formation of laws and regulations or radically deviated from the principle of lawmaking. Constitutional Court Decision Number 91/PUU-XVIII/2020 requested that the Job Creation Law, which was declared conditionally unconstitutional, be revised through a good and correct mechanism for law and regulation formation, which includes community participation. In the context of the president's attitude towards using Government Regulation in Lieu of Law to comply with the Constitutional Court Decision No. 91/PUU-XVIII/2020, the use of the Perpu mechanism to improve the Job Creation Law negates public participation as a fundamental part of the process of forming good laws and regulations.

DEVELOPMENT OF REGULATIONS ON VOTING RIGHTS PEOPLE WITH MENTAL DISORDERS POST-CONSTITUTIONAL COURT RULING APPLIED

This research only focuses on the regulation of the right to vote in general elections, whether at the national or regional level, for people with mental disorders. The general paradigm is very varied regarding the mental condition of people with mental disorders. There is a crucial ambiguity regarding the intellectual capacity of people with mental disorders. The effect of the debate concerns granting them the right to vote as a constitutional right. This research aims to explore further the legal politics of regulating the right to vote for people with mental disorders in Indonesia. The research method used is normative legal research with a statutory and comparative approach. The results of this research show that people with mental disorders are subjects who are excluded from being granted the right to vote. This is confirmed in Article 57 paragraph (3) letter a of Law Number 8 of 2015. The meaning of this provision has shifted after Constitutional Court Decision Number 135/PUU-XIII/2015. Restrictions are granted only in cases of mental disorders and/or permanent memory according to mental health professionals who have lost the ability to choose. The ratio decidendi which is the argument is that the condition of people with mental and/or memory disorders is not permanent enough to eliminate their intellectual capacity to choose. As a result, people with mental disorders can participate in voting in national or regional elections as long as they are not declared by mental health professionals to be incompetent to vote.

CONSISTENCY OF INDONESIA'S INTERNATIONAL TREATY IMPLEMENTATION IN THE FIELD OF INVESTMENT IN THE NATIONAL LEGAL SYSTEM: A POLITICAL PERSPECTIVE OF LAW TO REALIZE COMMUNITY WELFARE

This research examines the issue of consistency in the implementation of Indonesia's international agreements in the field of investment in Indonesia's national legal system, with a focus on achieving public welfare. The political implementation of Indonesian International Treaties in the field of investment into national law is divided into two periods. The period before the Constitutional Court Decision Number 13/PUU-XVI/2018 and the subsequent period. The court decision mainly talks about how to ratify an international treaty. Article 2 of Law No. 24/2000 on International Agreements states that ratification of international agreements is done in two ways, namely ratification by passing a law by the Parliament and ratification by issuing a presidential regulation by the President. Ratification through parliament if an international agreement has a broad and fundamental impact on the livelihood of the people related to the financial burden of the state and or requires amendments to the law as stipulated in article 11 paragraph (2) of the 1945 Constitution. Meanwhile, the position of international agreements in the field of investment, based on Article 11 (2), the ratification of International Agreements is based on Presidential Regulations. At the same time, there are international investment agreements whose material can have a broad and fundamental impact on people's lives, so the absence of parliamentary control can lead to inequality and potential negative impacts on people's welfare. Through normative legal research methods, the findings show that foreign investment must provide the maximum benefit for economic development and public welfare, and the ratification of international investment agreements can be done either through presidential regulations or legislation by passing a law