Indonesian Constitutional System Research Articles

Transformation of the Indonesian Constitutional System Through Amendments to the 1945 Constitution

Transformation of the Indonesian Constitutional System Through Amendments to the 1945 Constitution

The Staples of the State Policy as the Legal Basis for Sustainable Development to Face the Industrial Revolution 5.0 and Golden Indonesia 2045

The National Long-Term Development Plan (RPJPN) and the National Medium-Term Development Plan (RPJMN) are national development planning systems developed after the abolition of the State Policy Guidelines (GBHN) in the Indonesian constitutional system. The RPJMN has been deemed inadequate because the actors that form and implement it are deemed unrepresentative and irrelevant to the essence of popular sovereignty, as well as ineffective public control mechanisms for the implementation. Therefore, a legal instrument is needed in the form of Staples of State Policy (PPHN) as a legal basis or legislative umbrella for the development and the re-establishment of the GBHN (or by other names) as well as the direction in planning and monitoring the government’s commitment as an executive institution. This research aims to find out and provide recommendations for PPHN legal basis as a legislative umbrella for implementing sustainable development in the face of the industrial revolution 5.0 and Golden Indonesia 2045. The research was conducted using normative juridical research methods with descriptive-analytical research specifications with qualitative analysis. This research applies (a) statute approach; (b) conceptual approach; and (c) comparative approach. Results show that since the reformation era, national development in terms of legislation has not been conducted sustainably. This can be seen from the disharmony and even the negation of national development programs. PPHN arrangement as Directive Principles of Indonesian Government Policies can be conducted through: (a) Limited amendments to the 1945 Constitution, especially Article 2 and Article 3 paragraph (1) of the 1945 Constitution by including the substance of the People’s Consultative Assembly (MPR) authority to formulate PPHN; (b) Amendment of Law No. 12 of 2011 by Law No. 13 of 2022 on the Second Amendment to Law No. 12 of 2011, specifically revising the explanation of Article 7 paragraph (1) letter b, hence, the MPR can formulate Decree as part of statutory regulations, including PPHN; (c) Amendment of Law No. 17 of 2014 on the MPR, DPR, DPD, and DPRD as amended several times, most recently by Law No. 13 of 2019 on the Third Amendment to Law No. 17 of 2014 by including the MPR's authority to formulate PPHN through MPR Decree; (d) Stipulation of PPHN in a law that revokes Law No. 25 of 2004 on the National Development Planning System (SPPN); or (e.) The MPR stipulates PPHN as a constitutional convention without going through changes in legal products

Legal Politics Of The Asean-China Free Trade Agreement (Acfta) In The Principles Of National Economic Prosperity

This research wants to find that Article 84 of Law number 7 of 2014 solves AC-FTA trade agreement on the macro economy in terms of the principle of national economic welfare and state institutions ratifying the AC-FTA trade agreement from the perspective of the separation of powers theory in frame of the Indonesian constitutional system. The research method used in this research is a normative juridical research method through literature studies which examine primary, secondary and tertiary legal materials. The results of the research are that the attribution of the President's authority to ratify the AC-FTA trade agreement has consequences for the national economy at a macro level in terms of the principle of national economic prosperity

Cancellation of Regional Regulations in Indonesian: An Overview of the Conception of Constitutional Democracy

In connection with the decision of the Constitutional Court Number 137/PUU-XIII/2015, this study examined the cancellation of regional regulations reviewed in Indonesia's constitutional system. The research method is normative legal research, or looking at the laws and regulations that are in effect. This study also collects legal materials using the library method, which are presented qualitatively and descriptively. This study will demonstrate the connection between the cancellation of regional regulations and the authority and position of the Minister of Home Affairs as assistant to the president in the Indonesian constitutional system. The regional regulation was scrapped because it was thought to make it harder to make investments in Indonesia. The Republic of Indonesia's central government has the authority to oversee the administration of regional governments, overseeing every regional regulation and regional head regulation. Be that as it may, after the choice of the Protected Court, the Clergyman and lead representative as delegates of the focal government never again have the position to drop a territorial guideline. In conclusion, this study reveals that the governor and the Ministry of Home Affairs can only cancel regional regulations that conflict with higher regulations, are not in line with interests, or violate moral norms in general through the process of testing regional regulations before they are enacted (executive). preview). This is different from the situation before the Constitutional Court's decision, when the Minister of Home Affairs and the Governor still held authority.

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

Functions and roles of representative bodies in the state administration system (critical analysis of the journey of democracy in Indonesia)

The purpose of this study is to determine the function and role of representative bodies in the Indonesian constitutional system by looking at the journey of democracy in Indonesia. This research uses a descriptive qualitative research method based on a literature study and a normative law approach. The data in this study is secondary data obtained by observing literature. The results of this study indicate that basically, the DPD, DPR, and DPRD have the same functions and roles, namely the function of legislation, the function of budgeting, and the function of supervision. The difference between the three lies in the representation that is shaded and the details of the duties and authorities that emerge from these functions. The DPD only appeared after the third amendment to the 1945 Constitution. The DPR has existed since the Dutch colonial era, although it was abolished during the Japanese colonial period. This study concludes that the fact that there is a representative council in Indonesian democracy is something that has a vital role.

The Shifting of the President Prerogative Powers in the Presidential System Post Amendment to the UUD 1945 in Indonesia

Objective: To look for a shift in presidential power from the development of the constitution and constitutional practices in Indonesia. After the amendments to the 1945 Constitution were made, there was almost no authority the President could exercise alone without seeking approval or consideration from other institutions, except for the appointment of ministers. The research aims to determine the factors that cause the President's Prerogative Powers to be inconsistent with the ideal conception of the Indonesian constitutional system. Since the beginning of Indonesian independence, the constitution has placed the prerogative rights of the president very dominantly, now after very fundamental changes to the constitution it also has implications for shifting the prerogative power of the president. Method: The research used juridical-normative. The approaches used in this research are the Legislative Approach, Conceptual Approach, and Historical Approach. Results: In a presidential system, the president has absolute authority in appointing ministers, although in practice the president is also closely tied to supporting parties or other parties who have made political commitments to the president. In the 1945 Constitution after the amendment, there is no longer anything that is truly a prerogative power of the president that can be exercised without obtaining approval or consideration, especially from the People's Representative Council as the people's representative institution. Conclusion: Prerogative power also has an undemocratic and potentially dangerous tendency, so to increase public accountability, the use of prerogative power by the President must apply power by involving institutions as representatives of the people.

Penundaan Pemilihan Umum dalam Sistem Ketatanegaraan Indonesia

Introduction: The 1945 Constitution of the Republic of Indonesia does not regulate the postponement of elections and clearly emphasizes that elections are held once every five years, but the discourse on postponing elections has been discussed in Indonesia. Purposes of the Research: The constitutionality of postponing elections and the legal consequences of postponing elections in the Indonesian constitutional system. Methods of the Research: The research method used is normative juridical with statutory and conceptual approaches.Results of the Research: The results of this study concluded that the postponement of elections can use the form of postponement of subsequent elections in the Election Law because the form of postponement of elections in the Election Law does not conflict with the 1945 Constitution of the Republic of Indonesia. Even though the 1945 Constitution of the Republic of Indonesia has stated that elections are held once every five years, in realizing the postponement of elections there is a constitutional way, namely there is a constitutional mechanism, namely through amendments to the 1945 Constitution of the Republic of Indonesia. The postponement of elections also affects the term of office of the President and Vice President as well as members of the DPR, DPD and DPRD

Potential Irregularities in Arrangements of Amendment Regarding the Term of Office of Village Heads in the Indonesian Constitutional Law System

The discourse to extend the term of office of the village head creates problems in the Indonesian constitutional system. This is because the addition will potentially extend the term of office of the village head to 27 (twenty-seven) years. In fact, cumulatively, the term of office of the village head based on Law Number 6 of 2014 concerning Villages is quite long, namely 6 (six) years and can be elected 3 (three) times, which means that the village head can serve 18 (eighteen) year. On the other hand, the duration of a village head, which has the potential to reach 18 years, is also essentially inconsistent with democratic principles which provide a maximum limit for public officials who are elected through political mechanisms to hold office. For this reason, the idea of reconstructing the village head's term of office has become an urgent issue in the Indonesian constitutional system. The research question in this article is whether there is a potential for irregularities in the arrangements regarding the extension of the village head's term of office. The type and research approach used in this article is comparative normative juridical research with a statutory approach. The hypothesis in this article is that the long term of office of the village head is contrary to the concept of democracy, namely the limitation of power.

The Role of Political Parties in the Implementation of Democratic General Elections in the Indonesian State Administration System

Purpose: The objective of this study is to analyze the role of political parties in the organization of democratic general elections, in the context of the Indonesian constitutional system. Theoretical framework: Democratic elections are one of the fundamental pillars of the Indonesian political system, based on democratic principles. In this context, political parties play a decisive role in influencing and shaping the general election process, as well as in providing a forum for citizen political participation. Method: This research will use a qualitative approach, with a descriptive analysis and a literature analysis. The results of the study show that democratic elections can be demonstrated in at least 3 things, i.e. whether human rights are recognized, protected and promoted, the loyal capacity of electoral participants. Results and Conclusions: According to the study, democratic elections in Indonesia require an active role of political parties as representatives of the interests of the people. Political parties must be able to articulate the wishes and needs of citizens and to formulate programmes and policies that reflect citizens' values and expectations. In addition, political parties must ensure that the process of electing candidates is highly transparent and accountable. Research Implications: According to the conclusions of this study, political parties play an important role in Indonesia in ensuring the consedeo of democratic elections. Representing the interests of the people, participating in fair elections. Originality/value: Writing quality candidates and leadership candidates, and mobilizing the public to actively participate in elections are part of the responsibilities of political parties.

Implementasi Tugas Dan Fungsi Komisi Pemberantasan Korupsi Sebagai Independent Agencies Dalam Sistem Ketatanegaraan Di Indonesia

The 1945 Constitution of the Republic of Indonesia (1945 Constitution of the Republic of Indonesia) confirms that Indonesia is a constitutional state. Therefore, the administration of the state in Indonesia must uphold the values of Pancasila and the 1945 Constitution of the Republic of Indonesia, and guarantee that all citizens, together with their position before law and government, in carrying out constitutional affairs. From the perspective of this rule of law, it is the law that holds the highest command in the administration of the state. Thus, in fact the leader in administering the state is the law itself, in which there is an understanding of the recognition of the principle of legal and constitutional supremacy, adherence to the principle of limitation and separation of powers according to the constitutional system regulated in the Constitution. There are three classical functions of power in legal and political theory, namely the legislative, executive and judicial functions or called the trias politica. Problems Based on the background of the problems described above, the problems that are examined and discussed are as follows how the implementation of the duties and functions of the Corruption Eradication Commission as independent agencies in the Indonesian constitutional system and what are the obstacles to implementing the duties and functions of the Corruption Eradication Commission as independent agencies. Type of Research This research is normative juridical research or also called doctrinal research. In this type of research, law is conceptualized as what is written in laws and regulations (law in book) or law is conceptualized as rules or norms which are standards for human behavior that are considered appropriate.

Peraturan Daerah Syariah dan Problem Dilematis

the results of the Reformation have made a fundamental change in the Indonesian constitutional system which initially adopted a centralized system to become decentralized. One of the effects of the implementation of the decentralization system in Indonesia is the emergence of Islamic regional regulations. Some of the contents of these Sharia Regional Regulations are contrary to the principles of human rights contained in the constitution. . In addition, this regulation appears to be related to the historicity of the implementation of Islamic Sharia in Indonesia since Islam entered the archipelago. Some of the contents of sharia regulations conflict with provisions in the principles of human rights both contained in human rights in an Islamic perspective and human rights contained in the Indonesian constitution. The main principle in Islamic teachings is the benefit of society which is contained in the Qur'an and Sunnah. Implementation of laws and regulations including regional regulations which are the lowest level in the hierarchy of laws and regulations must realize the main goal of the state, namely the protection of citizens' rights and in the concept of dusturiyah siyasah it is also stipulated that regulations must ensure the benefit of society as the main goal in Islamic nomocracy.

The Environmental Fund Management Model in Indonesia: Some Lessons in Legal Regulation and Practice

Environmental Fund Management (EFM) is a government effort to optimize EEI (Environmental Economic Instruments), to preserve the functions of the ecosystem. Based on regulation, EFM is entrusted to the Indonesian Environmental Fund (BPDLH) through channeling, fund fertilization, and distribution. BPDLH is appointed a trustee to manage the environmental fund, especially the trust/conservation assistance finance. The existence of trustee agreements often requires follow-up from a legal aspect. This is because Indonesia’s legal system does not recognize the trust law essentially acknowledging the dual ownership of an asset/property. Therefore, this study aims to analyze the use of the trust model in environmental fund management from a legal perspective. It also aims to evaluate the reasons Indonesian law needs to propose a trust policy as the basis for any activity adapting to conservation assistance, including EFM. This study was carried out by using a normative and qualitative juridical analysis. The results showed that the model used in EFM was a legal adaptation of the trust law and was adjusted to the Indonesian constitutional system not recognizing dual ownership. This trust model emphasized an agreement as a legal basis and limited the trustee’s authority in managing funds, leading to suboptimal environmental finance management, especially in nurturing money. Meanwhile, the environmental fund managed by BPDLH was relatively small compared to the needs. This proved that the trust model was represented by individuals/institutions as beneficiaries, based on an agreement with the trustee. From this context, the presence of Indonesian Trust law was capable of ending the legal vacuum in the constitutional system of the country. By specifically regulating the principles of trust and incorporating the dual ownership concept into the proposed law, the goal of fund management was achieved, including environmental finance. The management goal also maximized the benefits for the beneficiaries, namely the environment

Pengujian Satu Atap Sebagai Optimalisasi Penataan Regulasi dalam Sistem Ketatanegaraan Indonesia

Disharmonization of Indonesia's regulatory system has become a complicated issue. Many factors cause it. One of the factors causing disharmony of statutory regulations is the absence of centralized review of statutory regulations in a separate institution. Based on Articles 24A and 24C of the 1945 Constitution of the Republic of Indonesia, the review of statutory regulations in the Indonesian constitutional system is carried out by two separate institutions, namely the Supreme Court and the Constitutional Court. The decisions of the two judiciary institutions are final and binding and cannot be appealed, so the decisions must be implemented. Problems occur in the Indonesian constitutional system when the two institutions issue conflicting decisions, resulting in legal uncertainty regarding which norms should be applied. Therefore, one rooftop testing is something that is urgent to be implemented in the Indonesian constitutional system, as an effort to create regulatory harmonization. The research method used in this research is normative juridical. The research hypothesis is that a one-stop examination is necessary and should be given to the Constitutional Court.

The Development of General Elections and Regional Head Elections After the Reformasi Era

Indonesia is a constitutional state (Rechtsstaat) that upholds the values of legal norms based on laws. Indonesia has the highest legal norms, namely Pancasila and the 1945 Constitution of the Republic of Indonesia. Therefore, all forms of legislation that are made must not conflict with the 1945 Constitution of the Republic of Indonesia. in the Indonesian constitutional system experienced a very significant change. The implementation of direct and simultaneous elections in the post-reform era was held on April 17 2019, which is historical in the electoral process in Indonesia. This is an implication of the Constitutional Court Decision Number 14/PUU-XI/2013 concerning the judicial review case of the Law of the Republic of Indonesia Number 42 of 2008 concerning the General Election of President and Vice President. directly by the people. Simultaneous election implementation which will be held in 2024, this has been stipulated in the Law of the Republic of Indonesia Number 7 of 2017 concerning General Elections and the Law of the Republic of Indonesia Number 10 of 2016 concerning the Second Amendment to Law Number 1 of 2015 Concerning the Stipulation of Government Regulation in Lieu of Law Number 1 of 2014 Concerning the Election of Governors, Regents and Mayors to Become Laws. The two laws mandate that in 2024 elections will be held simultaneously in 1 (one) year, namely presidential and vice-presidential elections, legislative elections and regional head elections. In addition, there is a provision regarding the presidential threshold that has existed since the 2004 election.

Review of the Authority of the House of Representatives in Removing Constitutional Court Judges

The Constitutional Court of the Republic of Indonesia is a high state institution in the Indonesian constitutional system which is the holder of judicial authority together with the Supreme Court. In the dismissal of the Constitutional Court Judges it is very urgent to decide because it relates to the independence of the Constitutional Court Judges. The longer the case, the political pressure from the DPR as a fellow state high institution will result in the instability of the legal system in Indonesia. Moreover, at this time the DPR has confirmed that it will not annul the replacement of Constitutional Justice Aswanto, so it is important that the DPR's actions be immediately tried by the judicial authority, in casu the Constitutional Court. The formulation of the problem in this study is what is the authority of the DPR in removing Constitutional Court judges? This study uses normative research with descriptive research specifications. The province's request for an examination is very priority and also so that the Court suspends all actions aimed at replacing a serving Constitutional Justice in a manner or procedure outside of the provisions in Article 23 of the Constitutional Court Law, and it is also not justified to issue a stipulation that legalizes the action as the applicant requested in the petitum provision. The petition of the applicant is based on strong reasons which are non-nobis solum sed omnibus (not for us alone, but for everyone), because the independence of the MK as guardian of constitutional rights is at stake.

Does Caning Contribute to Criminal Law Enforcement? A Case Study of Aceh, Indonesia

Since the beginning of the reform era, the Qanun jinayat has been incorporated into the Indonesian constitutional system. However, its application is reaping benefits and drawbacks in policy and practice, where caning is used as a logical result of the Qanun jinayat. This study aimed to reaffirm the background of the legislation of Qanun in Aceh Province and its place within the Indonesian constitutional framework. Additionally, we investigated the applicability of the concept of caning as a substitute for punishment in the context of updating the national criminal code. A normative juridical research methodology was used, comprising a statutory, analytical, and comparative study approach. According to the interpretation of Article 7 of Law Number 12 of 2011 on the Formation of Legislation, the findings of this study showed that the role of Qanun in the Indonesian constitutional system was equivalent to regional laws. In addition, caning is viewed as an alternative to punishment in the context of amending the country’s criminal code by considering the theoretical features of punishment, its intent, the cost-benefit analysis, and its efficacy.
 Keywords: Qanun, Caning, Criminal Law Reform

The Urgency of the Constitutional Question by the Constitutional Court and Its Relevance to the Indonesian Democracy Index during the COVID-19 Pandemic

The Constitutional Court’s authority to conduct the judicial review contains deficiencies implied upon the less maximum efforts to actualize constitutional democracy during the COVID-19 pandemic. Hence, the constitutional question is crucial in responding to the issue; it influences the increase of the Indonesian democracy index during the COVID-19 pandemic. The present study aimed to examine and analyze the urgency of constitutional questions by the Indonesian Constitutional Court in actualizing constitutional democracy with a particular design if it is to be regulated in the Constitution and the laws of the Constitutional Court. The research belongs to normative juridical with library research method. The results showed the urgency of the Indonesian Constitutional Court’s authority to impose constitutional questions. (1) It is to increase the Indonesian democracy index during the COVID-19 pandemic (2) It is to protect the citizens’ Constitutional Rights; (3) It is to increase the citizens’ constitutional awareness; (4) It is to connect the judges’ interpretation; (5) It is to actualize progressive and responsive substantive justice. Besides, the research compared the authorities of the constitutional courts applied by countries such as Austria, Germany, and Russia, where the Constitutional Courts in several countries have constitutional question authority. A recommendation of constitutional question arrangement within the Indonesian constitutional system accompanied this research.

CONSTITUTIONAL POSTPONEMENT OF THE 2024 GENERAL ELECTION IN THE INDONESIAN STATE SYSTEM

The discourse on postponing the 2024 general elections has become a separate discourse in implementing democracy in the Indonesian constitutional system. This intersects between holding general elections as mandated by the provisions of the 1945 Constitution and Law Number 7 of 2017 concerning general elections held every 5 (five) years and affirming the limitation of executive and legislative powers for 5 (five) years based on The 1945 Constitution. This becomes the primary argument in reviewing the constitutionality of postponing the 2024 General Elections in the Indonesian State Administration System. Postponement of General Elections as regulated in Law no. 7/2017, which basically regulates the existence of a an advanced general election and a follow-up general election. The follow-up general election and the follow-up general election constitute a postponement of the general election in the stages of holding the general election so that the follow-up general election and the follow-up general election do not include a postponement of the general election outside the stages of holding the general election. Postponement of general elections outside the stages of holding general elections has no legal instruments. As for the realization of postponing the General Election, it can be done through the issuance of a Perppu or an Amendment to the 1945 Constitution. Suppose it refers to the issuance of a Perppu. In that case, it is necessary to emphasize matters of urgency that compel the postponement of the general election can be carried out. In addition, the realization of postponing general elections with a rational paradigm can be carried out through the Amendments to the 1945 Constitution

Should the Muslim President become a constitutional convention in Indonesia? Based on constitutional debates about Islam and state, and the constitutional practice

Since Soekarno to Joko Widodo, all of Indonesia’s presidents have been Muslims. This practice is based on Dicey’s theory of constitutional conventions, i.e. rules of conduct that can persist over time and gradually gain persuasive power before becoming mandatory. Is this a reasonable assumption? Furthermore, should a Muslim President be a constitutional convention? This article employs socio-legal studies in the form of law in context, a historical approach to the constitution-making debate and a practical approach to Indonesian political reality. The study’s findings indicate that having a Muslim President as a constitutional convention is appropriate not only in terms of long-standing customs and practices but also as a resolution to the constitutional debate on Islam and the state, particularly the religious requirements for the President. As a constitutional convention, the Muslim President is not the law in the strict sense that it is binding and enforceable in court. Instead, it is a positive morality, ethics, and comprehension that serves as a moral guide for state officials and politicians. The Constitutional Convention in the form of a Muslim President, as well as the appointment of state offices taking religious proportionality into account, is an informal accommodation in the division of power in the design of the Indonesian constitutional system that takes into account the factors of Indonesia’s plural and potentially divided society. As a result, the convention improves Indonesia’s integration function.