Decision Of Constitutional Court Research Articles

Application of Constitutional Court Decision No.18/PUU-XVII/2019 concerning Fiduciary to the protection of Consumer Rights

This article is to find out how to apply Constitutional Court Decision No.18/PUU-XVII/2019 concerning Fiduciary to the protection of Consumer Rights. Collateral comes from the Dutch words zekerheid and cautie which means the debtor's ability to repay the creditor. This is achieved when the debtor receives a loan or debt from a creditor and uses valuables as collateral to secure the loan or obligation. As stated in the Decree of the Directors of Bank Indonesia No. 23/69/KEP/DIR dated 28 February 1991 concerning Credit Guarantee, the word "guarantee" in Indonesian can mean guarantee. This article uses the Normative Juridical method relating to issues relating to the Mortgage and Lien Rights Law and the Final Decision of the Constitutional Court. In collecting information for this research, we looked at various sources, including primary, secondary and tertiary legal materials, related laws and regulations, as well as documents that use a normative juridical approach to examine Constitutional Court and Constitutional Court decisions. Mortgage and Lien Law.

Juridical Analysis of the Authority of Constitutional Court Decisions Regarding Elections

Juridical Analysis of the Authority of Constitutional Court Decisions Regarding Elections

Disparity in Constitutional Court Decisions Regarding the Age Limits for Presidential and Vice-Presidential Candidates (Study of Decision No. 29/PUU-XXI/2023 and Decision No. 90/PUU-XXI/2023 concerning the Age Limit for Presidential and Vice-Presidential Candidates)

The aim of this research is to determine the disparity in constitutional court decisions regarding the age threshold for presidential and vice-presidential candidates. This research is a type of normative legal research that uses statutory, conceptual and case approach methods. The results of the research explain that if examined from the aspect of considerations of constitutional court judges in case number 29/PUU-XXI/2023, it is stated that determining the minimum age of the President and Vice President is the domain of law makers (open legal policy), while in case number 90/PUU- XXI/2023 the constitutional court interpreted that the existence of an open legal policy (open legal policy) although it can be accepted in constitutional practice, but in its development the constitutional court could ignore or set aside while giving a re-interpretation of the norm which is an open legal policy, while from the adoption procedure decision in the judge's deliberative meeting held in case Number 29/PUU-XXI/2023, the chairman of the constitutional court, Anwar Usman, did not participate in discussing and deciding to avoid conflicts of interest, while in case Number 90/PUU-XXI/2023 with the same constitutionality issue the chairman The constitutional court participated in discussing and deciding the case with the decision being granted in part, namely being at least 40 years old or having/currently held a position elected through general elections, including regional head elections.

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.

선거운동에 관한 국회 입법의 평가와 과제

The freedom of election campaigning serves as a means for free elections, represents the freedom of political expression, and signifies the realization of the right to participate in politics. In this paper, amid the inauguration of the 22nd National Assembly, we evaluate the amendments to the “Public Official Election Act” by the 21st National Assembly, focusing on election campaigning, and propose legislative tasks for the 22nd National Assembly. The evaluation is based on the decisions of the Constitutional Court during the term of the 21st National Assembly, which ruled on multiple occasions that certain regulations related to election campaigning in the “Public Official Election Act” were unconstitutional or incompatible with the constitution. The content of the amended “Public Official Election Act” by the 21st National Assembly was analyzed based on these decisions. The decisions of the Constitutional Court appear to clarify the intended constitutional significance of the freedom of election campaigning, aiming to grant a broader scope of freedom to the citizens. Despite this intent expressed by the Constitutional Court, the “Public Official Election Act” revised by the 21st National Assembly does not properly reflect the spirit of the Court's decisions. The 22nd National Assembly has a duty to pay more attention and properly amend the “Public Official Election Act.” Evaluating the amendments related to election campaigning in the “Public Official Election Act” by the 21st National Assembly, despite the Constitutional Court's decisions specifying legislative deadlines to address unconstitutional discrepancies in regulations such as campaign restrictions using armbands and installation bans, the passed deadlines led to a one-month legislative gap. The regulations on installation bans and the distribution and posting of documents and paintings through illegal methods were only minimally revised by shortening the restriction periods, failing to eliminate the unconstitutional nature of broad and extensive restrictions as pointed out by the Constitutional Court. The limits on various gatherings were only slightly adjusted by introducing personnel restrictions, not reflecting the decisions' intent at all. Thus, the 22nd National Assembly should initially amend the “Public Official Election Act” in detail, in line with the decisions of the Constitutional Court. More fundamentally, considering the constitutional significance of election campaigning, it is necessary to redefine the need for and standards of regulation, significantly expand the freedom of election campaigning on the principle of 'permissive by default, restrictive by exception,' and boldly eliminate unnecessary regulations. Additionally, the “Public's Elections Act” should clarify the contents that the general public needs to know and adopt as norms for their actions, consider transitioning from limiting the election campaign period to regulating election campaign costs, and also critically review and adjust any conflicting or contradictory legal interpretations, as well as consider simplifying the legal structure through the categorical classification of the “Public Official Election Act.”

직업선택의 자유의 제한과 자격제도

This article begins with a fundamental question about the level of qualifications required by the qualification system and conducts a constitutional review of the unconstitutionality of the quota system selection method in the qualification system. While the qualification system is essentially intended to evaluate qualifications and abilities, the quota system is seen as being determined by a complex combination of social demands and other interests. However, in the 2008 Heonba 110 decision, the Constitutional Court ruled that the quota system (relative evaluation) selection method under the bar examination system did not violate the principle of prohibition of excess, and this article examines the arguments of the existing Constitutional Court decision to discuss the various qualification systems currently in progress. In this regard, the intention was to proceed with a constitutional explanation regarding the quota system. In the main text, the review criteria for freedom of occupational choice are identified as a prerequisite, the German three-stage theory and the Constitutional Court are compared and reviewed, and then the Constitutional Court decision is reviewed. In conclusion, this article believes that the quota selection method contains objective factors that are unrelated to the ability or talent of the person involved. Even if some subjective reasons are acknowledged, it would be necessary to conduct a more rigorous review of the restrictions on occupational choice in the case, at least in the sense that objective reasons are also present. Furthermore, as a result of a new review of the Constitutional Court's argument, we looked at the quota system from the perspective that it violates the principle of prohibition of excess and has the potential to infringe on occupational freedom. In order to reduce the unconstitutionality of the quorum system, it is believed that there is a need to reform the qualification system by at least incorporating the method of absolute evaluation so that it can be objectively recognized as a verification to evaluate ability or qualifications.

Election Campaigns in Government Facilities, Places of Worship, and Places of Education

The utilization of educational places is prohibited as a campaign implementation. In the application submitted by the Petitioner in Constitutional Court Decision Number 65/PUU-XXI/2023 explained that the Explanation of Article 280 paragraph (1) letter h, based on reasonable reasoning, will certainly result in constitutional losses to the Plaintiffs as voters and/or as candidates for DKI Jakarta Provincial DPRD members, namely the occurrence of legal uncertainty in the prohibition of campaigns using government facilities, places of worship, and places of education. The legal uncertainty occurs because of the contradiction between the Explanation of the Article and its subject matter (contradictio in terminis). The existence of contradictio in terminis can be seen where Article 280 paragraph (1) letter h has expressly prohibited without exception and without conditions campaigns using government facilities, places of worship and places of education, but in its Explanation it actually excludes it with the condition that it is invited by the person in charge and without campaign attributes The existence of 2 (two) provisions that regulate differently (although the Explanation of the Article is not a norm but contains the formulation of norms) has resulted in legal norms becoming uncertain. The research used in this study is a type of library research based on normative research. By examining legal materials contained in various sources such as laws and regulations, court decisions, books, journals, and other articles, it is hoped that it can produce concepts and ideas related to the prohibitions in the campaign based on the perspective of democratic elections. So that the sources of normative research come from literature data, as mentioned earlier.

Perjanjian Perkawinan dalam Upaya Perlindungan Hak-Hak Perempuan

In a marriage, the aim is to create a happy household, a family filled with peace, love and affection. Marriage causes the mixing of husband and wife's assets or joint assets, unless they make a Marriage Agreement which regulates the separation of assets. A marriage agreement does not only discuss matters of property but also all matters related to the obligations of husband and wife. Prior to the Constitutional Court Decision No. 69/PUU-XIII/2015, marriage agreements could only be made before the marriage occurred. And after the issuance of Constitutional Court Decision No. 69/PUU-XIII/2015, agreements can be made after marriage. The purpose of the marriage agreement is to provide preventive and repressive legal protection, in addition to preventing problems arising in the household such as fighting over property, domestic violence, negligence of rights and obligations between husband and wife. This is a form of protecting women's rights in marriage.

Kedudukan Anak Luar Kawin Dalam Pewarisan Suku Minangkabau Ditinjau Dari Hukum Waris Adat

The status of extramarital children can be grouped into three kinship systems in Indonesia, namely patrilineal kinship, matrilineal kinship, and patrilineal kinship. The position of an extramarital child according to customary law is not the position of heirs or natural heirs of the father's descendants. Extramarital children only have a relationship with their mother and relatives. However, related to the context of the Supreme Court case law and the Constitutional Court decision Number 46/PUU-VIII/2010, this is an opportunity for extramarital children to get inheritance and legal protection from suspected biological fathers. So even an unrecognized extramarital child automatically has a civil relationship with his mother and his mother's family. Thus, the necessity of a mother to recognize her extramarital child as mentioned in the Burgerlijk Wetboek is no longer necessary. Likewise, it has been affirmed in the Constitutional Court Decision Number 46 / PUU-VIII / 2010 which is also part of legal reform, so that the child also has a juridical relationship with his biological father if it can be proven based on science technology and / or other evidence according to law.

POLITIK HUKUM PERADILAN PAJAK DALAM SISTEM PERADILAN DI INDONESIA

AbstractThe problematic legal arrangement of the tax court as stipulated in Article 5 paragraph (1) and paragraph (2) of Law number 14 Year 2002 on Tax Court, paragraph (1) "Technical judicial guidance for the Tax Court is carried out by the Supreme Court and paragraph (2) Organisational, administrative, and financial guidance for the Tax Court is carried out by the Ministry of Finance (now Ministry of Finance). This is certainly different from the independent judicial system or what is known as the "one roof system" in Law number 48 of 2009 concerning Judicial Power. This research uses a juridical-normative legal research method. The Juridical-Normative approach uses methods and techniques through a statute approach, case approach to examine the separation of powers and checks and balances of two power institutions, which attributively regulate the position of the Tax Court with the Tax Court Law and the Judicial Power Law and examine the Constitutional Court's decision relating to the discussion of the legal issues studied. The results of an in-depth study of the legal politics of the establishment of the Tax Court Law, should be directed at efforts to establish an independent judicial system "one roof system" and the Constitutional Court's decision to grant and declare Article 8 paragraph (2), Article 8 paragraph (3) and Article 13 paragraph (1) of the Tax Court Law does not have binding legal force, in maintaining the spirit of independent judicial power so that the court does not become an instrument of power (machtsapparaat), but becomes an instrument of law (rechtsapparaat), it is necessary to revise the Tax Court Law as part of improving the separation of powers and cheks and balances.Keywords: Legal Politics, Tax Court, Separation of Powers, checks and balances

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 extramarital children under the post-Constitutional Court decision of Balinese customary law. Any child born of unmarried parents or out of adultery is stigmatized as an extramarital child (walad al zina) for his entire life and forbidden from inheriting an estate from his biological father. This legal issue is chosen as the main subject of this study is because of the legal circumstance in which the Balinese community does not grant status to extramarital children in matters of inheritance from the Purusa line. Hindu-Balinese religious leaders such as Parisada and the Traditional Village Council have never upheld the Constitutional Court’s ruling that states 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). The fatwa imposes 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 (the Balinese call it begin at children) have no status as heirs in the Purusa line but have inheritance rights from their mother and their mother’s family.

Putusan Mahkamah Konstitusi dalam Pengelolaan Energi dan Sumber Daya Mineral dalam Perspektif Teori Sistem Hukum

The Constitutional Court has decided the case filed by the Governor of East Java and the DPRD of East Java Province in case Number 11/PUU-XIV/2016. This decision became one of the landmark decisions of the Constitutional Court. The aim of this research is to find out and analyze the decisions of the Constitutional Court regarding the management of energy and mineral resources in Indonesia. This research method uses a normative juridical method with a statutory approach. The results of the research, Constitutional Court Decision Number 11/PUU-XIV/2016 have provided legal certainty regarding the regulation of the authority to administer geothermal energy for indirect use, including the authority to grant permits to the Central Government. In subsequent developments, geothermal regulation is regulated in the Job Creation Law which was declared formally conditionally unconstitutional based on Constitutional Court Decision Number 91/PUU-XVIII/2020. Legal system theory as an analytical tool functions to dissect factors relevant to the management of energy and mineral resources.

Fath al-Dzari’ah Solution for Determining the Status of Children from Secret Marriages Through the Constitutional Court Decision

Marriage in secret (nikah sirri), also known as clandestine marriage or unofficial marriage, will have implications on the status of the marriage, which is not considered valid according to the State. Meanwhile, an invalid marriage will also impact the illegitimacy of the child's status. In reality, the Constitutional Court changed this rule with a statement that the child still has biological lineage to the person who caused their birth, as long as it can be proven with advanced technology and DNA testing. The question is, what is the status of children born from such clandestine marriages, and how does the Religious Court respond to this decision? This research aims to interpret the Constitutional Court's Decision on the validity of a child's status as biological lineage to the person who caused their birth, as long as it can be proven with advanced technology and/or DNA testing. This research is a normative juridical study with a legal approach and case based on the Constitutional Court Decision regarding the status of children from clandestine marriages using the theory of fath al-dzari’ah. The research findings indicate that the Religious Court cannot reject trial requests regarding the status of children resulting from clandestine marriages, as long as it can be proven through advanced technology and/or attached DNA testing, even though the marriage status is considered invalid according to the State, as long as it is proven that the marriage is considered valid according to religion with evidence of a guardian and witnesses in the marriage.

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.

Juridical Analysis of Criminal Acts in Environmental Pollution in Accordance to the 32 Law of 2009 Concerning Protection and Management Environment

This study aims to describe the regulation of criminal acts of environmental pollution in Indonesian positive law and to analyze the responsibility for criminal acts of environmental pollution according to Law Number 32 of 2009. This study uses normative legal research in the form of library research using three types of legal materials, namely primary, secondary and tertiary legal materials, qualitative descriptive research, normative juridical research, statutory and conceptual approaches. The results of the study stated that the regulation of criminal acts of environmental pollution in Indonesian positive law is regulated in Law Number 32 of 2009 concerning the Environment. This law stipulates that if environmental pollution and damage has already occurred, it is necessary to take repressive measures in the form of effective, consistent and consistent law enforcement against environmental pollution and damage that has occurred so as to apply the principle of primum remedium criminal law. The crime of environmental pollution is not only imposed on individual perpetrators of environmental crimes, but also on corporations. In addition, also to customary law communities based on the Constitutional Court decision No. 35/PUU-X/2012 by using conditionality in recognizing the existence of indigenous peoples as legal subjects which are still maintained as long as in reality they still exist and their existence is recognized, and confirmation of their existence is stipulated by Regional Regulations.