Constitutional Law Perspective Research Articles

URGENSI PENAMBAHAN MASA JABATAN PIMPINAN KOMISI PEMBERANTASAN KORUPSI PRESPEKTIF HUKUM TATA NEGARA

This research aims to find out what is behind the increase in the term of office of the leadership of the Corruption Eradication Commission in Indonesia. Also, the urgency of increasing the KPK's term of office is viewed from the perspective of constitutional law. This research is normative legal research that uses a case approach with data collection methods through literature study. Based on the research, the results and conclusions obtained are related to the Constitutional Court decision Number 112/PUU-XX/2022 regarding the term of office of the KPK leadership proposed by Nurul Ghufron as deputy chairman of the KPK for the 2019-2023 period. The reason for the request is related to the applicant's age when he was appointed, 45 years old, and when his position ended, he was 49 years old. So he cannot nominate himself as KPK leader for the next period as stated in Article 29 letter (e) of Law Number 19 of 2019. Also, the term of office for KPK leaders is 4 years for re-election for one period in Article 34 of Law No. 30 of 2002 is considered discriminatory regarding the terms of office of heads of other independent state institutions. The applicant feels that his constitutional rights have been violated due to injustice, discrimination and legal uncertainty. This decision is considered not urgent and is not in accordance with the concept of constitutional theory, justice and legal certainty. The age restriction setting is an open legal policy. And increasing the term of office of the KPK is not urgent considering the performance and achievements of the current KPK leadership. Keywords: Urgency of Term of Office, Corruption Eradication Commission, Constitutional Law

Bishops in the House of Lords: fit for the future?

AbstractThis article seeks to provide a constitutional law perspective on the contribution of the Lords Spiritual to the scrutiny of legislation in the House of Lords. It examines the legal basis of the bishops’ role in the Upper House and how this has evolved. It considers how far the bishops currently meet expectations about their role against the background of calls for reform of the House of Lords and changes in religious affiliation in the United Kingdom. The paper draws, amongst other things, on the experience of a group of current and former Lords Spiritual who shared their views with the author in the course of some informal semi-structured conversations. It also examines the relationship between the Lords Spiritual and the Church of England's national institutions. It concludes that the Lords Spiritual make a distinctive contribution to the legislature which should be maintained, with some modifications to meet the needs of the time.

Regulating constitutional complaint cases is the authority of the constitutional court

This research aims to determine the constitutional rights of citizens through constitutional complaints based on the authority of the Constitutional Court from the constitutional law perspective. Types of normative juridical research include statutory, conceptual, and case approaches. The data sources used are primary, secondary, and tertiary legal materials. The research results show that constitutional complaints as the Constitutional Court's authority have become an urgent need to be enforced in the Unitary State of the Republic of Indonesia. The authority for constitutional complaints to the Constitutional Court is eliminated, the legal implication of which is to create protection for the human rights of Indonesian citizens from actions by government officials or individuals who injure citizens' human rights and recognition of the constitution. The Court as an institution has the authority to submit constitutional complaints to the Constitutional Court. The Constitutional Court protects the constitutional rights of citizens if their constitutional rights are violated by the provisions of the law so that the law is then declared to be contrary to the constitution. The possibility of violating citizens' constitutional rights does not only occur through normative provisions in law. There are many ways and possibilities for citizens' constitutional rights violations, whether by the authorities or other parties.

The People's Representative Council's Right to Inquiry Against the Corruption Eradication Commission Institution in the Perspective of Constitutional Law in Indonesia

The People's Representative Council's Right to Inquiry Against the Corruption Eradication Commission Institution in the Perspective of Constitutional Law in Indonesia

Implementation of the State of Law Principles from the Constitutional Law Perspective: A Case Study of Legislative Aspects in Law Enforcement in Indonesia

The Fourth Amendment to the 1945 Constitution of the Republic of Indonesia, enacted in 2002, officially established the concept of the State of Law, or "Rechtsstaat," which was previously only mentioned in the Explanation of the 1945 Constitution. This concept was solidified in Article 1, paragraph (3), which states, "The State of Indonesia is a State of law." This study utilizes a normative legal research method, focusing on document analysis using various secondary data sources such as legal literature, court decisions, legal doctrines, and expert opinions. The research's analysis centers on the implementation of the rule of law principles within the constitutional framework, with a specific focus on legislation and law enforcement in Indonesia, particularly in the legislative domain. Despite efforts to reform legislation, there are still deficiencies in the legislative process that may hinder the effective implementation of the rule of law principles. Some challenges include inconsistencies in laws, the intricate nature of the legislative process, and potential political interventions that could compromise the independence of legislative bodies.

Presidential Neutrality and Position in the 2024 Presidential Election: A Constitutional Law and Comparative Law Perspective

In the event of the 2024 presidential election, the neutrality and position of the president play a key role in ensuring the continuity of democracy and justice. This article aims to investigate these issues from the perspective of constitutional law and comparative law. Through a normative juridical approach, this article explores the neutrality and position of the president in the 2024 general election from the perspective of constitutional law and comparative law. The data sources used come from primary and secondary sources. Based on the results of the analysis, it can be stated that the president as the people who have the right to vote and as the head of state who must prioritize neutrality towards the general election is prohibited from inviting others or the public to vote for one of the candidates. In addition, a legal comparison conducted with Malaysia, the Philippines, and South Korea found that the general elections conducted are almost the same as those conducted by Indonesia. Except Malaysia, because its form of government is a parliamentary constitutional monarchy. This means that executive power is held by the prime minister, who is the head of government and leads the cabinet. The Prime Minister is chosen from members of Parliament, who are members of the legislature elected by the people in general elections.

Standard of protection of property rights of owners of residential premises in a democratic country – selected problems considered in the light of Polish constitutional law

The article focuses on presenting key issues revealed in the context of the standard of protection of property rights of owners of residential premises in a contemporary democratic state governed by the rule of law. The considerations presented take into account the perspective of Polish constitutional law and the guarantees of protection of ownership and other property rights as regulated in the Constitution of the Republic of Poland of April 2, 1997 (with particular emphasis on Article 21 and Article 64). The issue addressed in this paper of particular importance from the Polish perspective because, on the one hand, Polish constitutional law formulates relatively broad guarantees for the protection of ownership and other property rights (including those rights of owners of residential premises and tenants – as outlined in Article 21 and Article 64 of the Polish Constitution). On the other hand, there are several practical problems in Poland in this context, including a very significant systemic issue related to the lack of any systemic solutions in the regulation of the short-term rental market by the Polish legislator.

Coup Government of Afghanistan From the Perspective of Islamic Constitutional Law

The Taliban are currently in control of the government in Afghanistan after taking over the authority from President Ashraf Ghani. The takeover is classified as a government coup because it was not conducted under the Afghan Constitution. Departing from this issue, this normative research examines the background of the Afghan government coup d’etat and analyzes it from the Islamic Constitutional Law perspective. The result concludes that (1) the coup of the Afghan government by the Taliban was triggered by the withdrawal of US troops from Afghanistan as a follow-up to the Doha agreement made between the United States and the Taliban. After the Taliban succeeded in occupying several areas, including the capital city of Kabul, Ashraf Ghani fled from Afghanistan to the United Arab Emirates, causing the collapse of the government; and (2) from the perspective of Islamic Constitutional Law, the Afghan government coup can be viewed from (a) the obligation to comply with the constitution, and (b) post-coup benefit considerations.
 
 Keywords: goverment; coup de etat; Islamic constitutional law.

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.

Religious Exemptions and the Constitutionality of Vaccine Mandates in the Philippines

Abstract Government responses to the covid-19 pandemic raise various legal concerns otherwise inconceivable in recent memory. One of the many implemented policies is the requirement of inoculation or vaccination to achieve herd immunity, similar to other diseases that have been eradicated by intensive vaccination programmes. Vaccine hesitancy, nevertheless, remains a persistent State concern which is complicated by reference to constitutionally protected rights. Refusal to be vaccinated on religious grounds has led various countries to provide religious exemptions to avoid judicial scrutiny. The Philippines, as the largest Christian nation in Asia, has a complex legal relationship with the church. This article discusses the State-church relationship from a constitutional and human rights law perspective and, using approaches formulated by the Philippine Supreme Court in religion clause analysis, attempts to assess, and possibly bridge, the perceived conflict between religious freedom and the Philippine government’s covid-19 vaccination policies.

Border Area Management: How Should Indonesia Reform?

This article examines how state territorial regulation can encourage development in Indonesia's border regions. This article also tries to explain the need for better management of borders between countries because there are several obstacles in implementing cross-border regulations. This research uses qualitative methods by taking the perspective of international law and constitutional law and collecting data through field research and reviewing related literature. Field research was carried out for 3 months by conducting in-depth interviews with several informants. Secondary data was obtained from reviewing books, journals, writings and mass media regarding international law, international relations and constitutional law. This research shows that the idea of ​​reforming border management between countries must be based on several aspects, namely law, institutions, development approaches and spatial planning. Keywords: border area management; governance; state territory

Efektivitas Undang-Undang Dasar Tahun 1945 terhadap Mekanisme Checks and Balances dan Pemakzulan Presiden atau Wakil Presiden dalam Perspektif Hukum Tata Negara

The 1945 Constitution of the Republic of Indonesia outlines the impeachment mechanism. This Constitution outlines that the procedure for impeaching the president and vice president must be mandated by the People's Representative Council (DPR) to the People's Consultative Assembly (MPR). It is important to acknowledge that the current impeachment process upholds the principle of checks and balances of direct presidential elections. The impeachment decision of the current president and vice president cannot strengthen the rule of law when the Constitutional Court (MK) determines that the president or vice president has violated the Constitution. This research aimed to find out the impeachment mechanism outlined in the 1945 Constitution with the principle of the supremacy of constitutional law. This research included a qualitative method by focusing on the problematic effectiveness of the 1945 Constitution on the check and balance mechanism and the impeachment of the president and vice president from the constitutional law perspective. The check and balance mechanism aims to create a democratic government. Check and balance is a principle controlling and maintaining state institutions' balance. The results revealed that the 1945 Constitution's mechanism for impeaching the president or vice president was relatively ineffective because the rule of law and the constitutional judicial mechanism were still handled by the political mechanism. Consequently, the check and balance mechanism did not occur in this process. The characteristic of impeachment as a control causes impeachment cannot to be implemented following the rule of law, which was an indicator that the check and balance mechanism had been unbalanced by the Constitutional Court's decision, which was used to create a legal mechanism that was not explicit and binding on the MPR and the 1945 Constitution.

The Polemic of Adding the Term of Office for the Village Head in View from the Perception of Constitutional Law

Village administration is the spearhead of national economic development and resilience. In its history, the Village has received recognition by passing Law Number 6 of 2014 concerning Villages. Before the existence of the Village Law, the basis for recognition by the Village Government was only found in Article 18B paragraph (2) of the 1945 Constitution of the Republic of Indonesia. This article tries to find out the forms of community participation in changing laws and regulations regarding Villages. In addition, it also examines the polemic over demands for an additional term of office for the Village Head, which has become the public spotlight from the perspective of Indonesian constitutional law. The type of research used in the preparation of this article is normative juridical with a statute approach and library research, by searching data and sources, which after that did a review and analysis until finally it was put in the form of writing of this article. Considering that Indonesia is a democratic country and not a communist country, where the communist government system seems authoritarian, and the term of office is long, the Village Law contains regulations regarding village authority and the term of office of the Village Head.

KEDARURATAN KESEHATAN MASYARAKAT DAN PEMBATASAN HAM DALAM PERSPEKTIF HUKUM KETATANEGARAAN INDONESIA

The COVID-19 that spread in early 2020 made countries all over the world declare a state of emergency. In the context of Indonesia, President Joko Widodo declared COVID-19 as a type of disease that causes a public health emergency through Presidential Decree Number 11 of 2020 on March 31, 2020. This study aims to find out the status of public health emergencies from the perspective of Indonesian constitutional law. Furthermore, this research also aims to find out how the state's authority in limiting human rights in public health emergencies is according to human rights law. In its analysis, this research uses a normative juridical method with a statutory approach and a conceptual approach. The results obtained indicate that the status of public health emergency as stated in Presidential Decree Number 11 of 2020 is different from the state of emergency as stated in Article 12 of the 1945 Constitution. As for the limitation of human rights, the state has the authority to limit the human rights of its citizens in the COVID-19 public health emergency.

The path to inclusion for undocumented migrant children in South Korea

This study focuses on undocumented migrant children in South Korea. The Korean migration policies are centered on marriage migrants and their children until recently, while the issue of undocumented migrant children of migrant workers has long been overlooked. Undocumented migrant children are placed in an extremely unstable situation both legally and practically. This study shows why their basic rights should be protected from the perspective of constitutional and international law. It examines the comprehensive legal and policy frameworks of migration and the newly introduced measures to protect these children in Korea. It concludes with a discussion of the shortcomings of the current system and recommendations for improvement.

The Protection for Citizen During Outbreaks: The Emergency Status During Covid-19 in the Perspective of Indonesian Constitutional Law

The purpose of this study is to offer novelty regarding the emergency status issued by the Indonesian government appropriately. Using normative research with an orientation that is not based on conceptual. The initial beginnings that occurred in Indonesia resulted in changes in the application of the law, especially state administration law where an emergency had two components, namely the legal framework consisting of the constitution and the legislative basis for emergencies and the operational framework involving organizational structures and strategic plans for dealing with emergencies. In this case the government must immediately lockdown because in the principle of emergency state administration law is an absolute thing that must be done. To carry out lockdown, it requires firmness and a combined security of all parties. Lockdown must also be limited by legal norms such as a presidential decree to avoid arbitrariness by the government. Such understanding is important so that the country can run well.

Mencermati Kewenangan Daerah untuk Melakukan Hubungan Luar Negeri: Batasan Kewenangan dan Keabsahannya

The authority to carry out foreign relations lies on the Central Government. However, the Regional Government can also establish relations with other regions abroad. This paper reviews the boundaries between regional and central authorities when conducting foreign relations within the conceptual framework of the regional autonomy in Indonesia. This paper attempts to answer two problems formulation, namely: first, what are the limits of regional authority to conduct foreign relations? Second, is the form of foreign relations carried out by the regions recognized internationally? By using statutory and conceptual approaches, this paper presents a normative research using the perspective of constitutional law and international law. Based on the research and discussion, the following conclusions are drawn: first, regional authority in conducting foreign relations is formulated as part of the implementation of concurrent government affairs by the regions, the implementation of which is based on the limits of authority, namely: general limits and minimum limits. Second, according to international law, foreign relations actions by the regions are considered valid, with references to customary international law, agreements that have been made, and the state responsibility for foreign relations particularly on actions conducted by the regional bodies.

Responsive Constitutional Law Strategy For Preventing Political Corruption Done By Local Political Dynasties

This article aims to examine corruption practices in the regions carried out by political dynasties and prevention efforts from the perspective of responsive constitutional law. It will examine the motives of political dynasties, forms of corruption by dynasties, factors that cause dynasties and efforts to prevent. This article uses a socio-legal method that is an interdisciplinary approach in the study of law by combining social sciences or humanities. Secondary data mainly comes from case, regulations and library. The results of the study show that the dynasties tend to practice the forms of corruption in the regions: corruption in the buying and selling of regional government positions and corruption in regional infrastructure projects originating from the Regional Budget Revenue. Factors causing political dynasties: the high cost of regional head elections and the absence of laws prohibiting dynastic practices in regional head elections. Efforts to prevent the practice of political dynasties for regional head elections from the perspective of responsive constitutional law are in the form of policies to regulate the regional head election system that prioritizes the principle of responsibility for public demands and provides alternative solutions through: reducing the cost of regional head elections, lowering the threshold for candidacy, changing the financing of regional head elections from the Regional Revenue Expenditure Budget to the State Expenditure Budget, separating local and national elections, a political culture that educates the people in voting, and policies for the welfare of the people in order do not elect dynastic candidates in regional head elections.

The Issue of Enacting the Omnibus Law on Job Creation from the Perspective of Indonesian Constitutional Law

The formation of the Job create law is one of breakthroughs that government has in the field of law to improve overlapping regulations, in particular conflicting or similar laws and regulations and then changes to regulations will be made. The purpose of this writing is to figuring the problem to makes occurs in formation of the law labor through Law Number eleven 2020 years concerning work creation. The formulation of the Job Creation Law uses the Omnibus Law approach by drafting laws that have different principles from one another. This approach was chosen with the hope of making licensing simpler and more accessible to investors and could have a positive impact on economic growth and employment. At the time of writing, the author using normative legal methods like collecting data from products in the area of law. With the birth of the law creating jobs should be hoped that it can increase investment so that it can create as many jobs as possible to reduce unemployment. And the government can issue regulations that benefit employers and workers so that they can comply with regulations that protect workers' rights. Because labor is a major part of the running process of a company.

Rekonstruksi Negara Hukum dalam Paradigma Hukum Islam dan Ketatanegaraan di Indonesia

This paper aims to analyse the discourse of the rule of law in the perspective of Islamic law and constitutional law in Indonesia. The research is a literature study with the main source of books, journals and other references related to the concept of the state in the perspective of Islam and constitutional law in Indonesia. The research method is descriptive qualitative with a normative approach. In the Indonesian context, the concept of law and the rule of law must be realised that it is not an original result or does not grow from within Indonesian society itself. The rule of law is an imported product or a building imposed from outside. The rule of law is the fruit of adoption and transplantation through the Dutch colonial concordance politics and European countries, commonly known as the Rule of Law and Rechtstaat. The conception of the Rule of Law and Rechtstaat are two conceptions of the rule of law that are only normative-legalistic in nature with categorical elements such as the supremacy of law, equality before the law, due process of law, It appears that the Indonesian rule of law, both at the level of the Rule of Law and Machtstaat, is influenced by external legal thinking that emphasises the anthropocentric dimension that focuses on individual and liberal values. So that in practice the Rule of Law turns into the Rule of Man, or from Rechtstaat turns into Machtstaat. In contrast to nomocracy in Islamic law, the rule of law is built on divine values, where law is the highest supremacy in human life. To get to the true state of law, it is necessary to reconstruct the conception and paradigm of the state of law in the future.