Constitutional Complaint: A Comparative Study of the Authority of the Constitutional Courts of the Republic of Indonesia and Croatia (original) (raw)

The Position of Constitutional Complaint in the Constitutional Court of the Republic of Indonesia

2021

The purpose of this research is to determine the constitutional complaint mechanism based on comparisons in other countries, practices, and adaptation of constitutional complaints under the authority of the Constitutional Court of the Republic of Indonesia. Many cases with constitutional complaint substance have been submitted to the Constitutional Court of the Republic of Indonesia even though they don’t have this authority. This research uses a normative legal research method using a statutory approach, a conceptual approach, a comparative approach, and a case approach. This research indicates that the constitutional complaint mechanism in Germany, South Korea, and South Africa has been well implemented. In practice, cases with constitutional complaint substance are filed to the Constitutional Court of the Republic of Indonesia by changing the form by using the legal means of a judicial review, such as case number 16/PUU-VI/ 2008, case number 140/PUU-XIII/2015 and case number 102/...

A Prospect and Challenges for Adopting Constitutional Complaint and Constitutional Question in the Indonesian Constitutional Court

Constitutional Review, 2016

A jurisdiction of the Indonesian Constitutional Court concerning constitutional adjudication is only limited to review the constitutionality of national law. There is no mechanism for challenging any decision or action made by public authorities that violate fundamental rights enshrined in the Indonesian Constitution. This article argues that constitutional complaint and constitutional question might be adopted as new jurisdictions of the Indonesian Constitutional Court in order to strengthen the protection of fundamental rights of its citizen. It also identifies main problems that will be faced by the Constitutional Court in exercising constitutional complaint and constitutional question. For instance, the Court will be burdened with too many cases as experienced by other countries. A clear mechanism for filtering applications lodged to the Constitutional Court and the time limit for deciding cases are important elements that have to be regulated to overcome the problems. In addit...

The Proposal of Constitutional Complaint for the Indonesian Constitutional Court

Jurnal Konstitusi, 2022

Penelitian ini tentang proposal pengaduan konstitusional pada Mahkamah Konstitusi Indonesia. Penelitian ini dilatarbelakangi persoalan ketidakjelasan pengaduan konstitusional dalam praktik, sementara kasus yang muncul cukup banyak. Metode penelitian yang digunakan adalah normatif dengan pendekatan perundang-undangan, analisis, dan pendekatan kasus. Hasil penelitian menunjukkan bahwa dasar pemikiran pelembagaan meliputi: pengaduan konstitusional merupakan pengejewantahan nilai-nilai konstitusionalisme dalam bernegara hukum Pancasila, sebagai penyempuna checks and balances, basis perlindungan hak asasi manusia, sekaligus bertujuan mewujudkan pemerintahan yang baik. Langkah kebijakan dapat dilakukan melalui amandemen Undang-Undang Dasar 1945, atau penafsiran non originalis, atau melalui perubahan Undang-undang MK. Objek sengketa yang menjadi batasan dalam pengaduan konstitusional, yaitu: putusan pengadilan, tindakan penyelengara negara dalam penafsiran konstitusi dan undang-undang, Ketetapan MPR, dan lainnya.

Authority of Constitution Court of the Republic of Indonesia based on Amendment of Constitution and the Development Thereof

Journal of National Development, 2018

Indonesian Constitution that prevails up to the present is 1945 Constitution or it can also be said as "1959 Decree Constitution". This is the constitution that sustains amendment in the year 1999-2002 because of the demand of reformation. The amendment of the Constitution has produced several new institutions, inter alia Mahkamah Konstitusi 1 (Constitution Court). This presents new authority in institutions of Indonesia. MK (Contribution Court) has produced a lot of judgments especially that relates to the testingof law, disputes of authority of state institutions and dispute of general election result. Whilst the case on dissolutionof political party and dismissal of president has never occurred. the position of the judgment of MK (Contribution Court) that is called as verdict does include a state decision that contains legal norm, even it can be said that the legal norm that emerges resulting from the judgment of MK (Contribution Court) constitutes legal norm that possesses a constitutional standard which is higher than any law that is not yet tested in MK (Contribution Court). MK (Contribution Court) judgments that get wide attention, be like inter alia ultra petita principle, conditionally unconstitutionally, the role of positive legislative, obrogation of law that is given a deadline/time limit and the franchise of the participants of general elections of district heads. The research method chosen by the author in the form of explanatory legal study is an explanatory legal. With this explanatory legal research method will be used in examining the Authority Of Constitution Court of The Republic

The Role of Indonesian Constitutional Court in Resolving Disputes among the State Organs

Hasanuddin Law Review, 2019

The paper attempts to assess the role of the Constitutional Court of Indonesia in the process of consolidating democracy in the country. Examinations are made on the court’s decisions regarding dispute concerning jurisdiction among state organs. This paper argues that the Constitutional Court has not made a significant impact on the promotion of democracy. It is believed that the failure of the Court to consolidate democracy through its decisions regarding dispute concerning jurisdiction among state organs could be attributed to two main reasons. The first is due to the unclear concept of subjectum litis of the petitioners to have legal standing in the Constitutional Court, and the second is the lack of understanding of the subject matter jurisdiction of the Court. Due to uncertainties only, small numbers cases registered and heard by the Constitutional Court. Furthermore, most of the cases registered in the Court either been rejected or not been accepted by the judges. Despite the ...

Relation between the Constitutional Court of the Republic of Indonesia and the Legislators according to the 1945 Constitution of the Republic of Indonesia

Constitutional Review

This research aims to analyze and to describe the relation between the Constitutional Court of the Republic of Indonesia (CC) with the People Representatives’ Council and the President of the Republic of Indonesia as legislators by looking on implementation of CC’s decision through the legislation in the period 2004-2015. Using doctrinal research, it can be seen how the constitutional mandate in the CC’s decision are implemented by the legislator through the legislation. The results are: (a) legal opinions of the CC’s decision have a binding power; (b) a constitutional mandate in the legal opinion is intended as guidance for the legislators regarding what the 1945 Constitution requires; (c) directives to the legislator in the legal opinions should be implemented because it is the implementation of the principle of checks and balances according to the 1945 Constitution, (d) implementation of the CC’s decisions through legislation does not have standard mechanism and does not become t...

Constitutional Court in National Law System Indonesia

Praise be to God Almighty because for his grace and grace, the preparation of the book entitled " CONSTITUTIONAL COURT in National Law System Indonesia" can be completed properly and appropriately at a predetermined time. This book we compiled to fulfill the task of The Constitutional Court Event Law Course in the Faculty of Law, the University of Stikubank Semarang based on what we have learned and studied in previous sources. In the preparation of this book, we realize there are still many shortcomings both in terms of the composition, content, and way of writing, therefore suggestions and criticisms that are constructive for the sake of perfection of this book we hope. We hope that this book can be useful for readers in general and also useful for the author in particular.

Undelivered constitutional justice? Study on how the decisions of the Constitutional Court of the Republic of Indonesia are executed

Jurnal Civics: Media Kajian Kewarganegaraan

The constitutional design of the institution of the Constitutional Court (MK), as the guardian and the sole interpreter of the Constitution, is to ensure and guarantee the supremacy of the Constitution, constitutional compliance, and to bestow constitutional justice for citizens in the practice of Indonesian administration. However, the reality of the Indonesian state administration shows that there is still disobedience or neglect of the judicial review decision produced by the Constitutional Court. This paper aims to analyze how the Constitutional Court's decision is executed and offer the alternatives to overcome non-compliance with the decision or ensure follow-up on the Constitutional Court's decision in the judicial reviews. This research is normative legal research using a statutory approach, comparison, and conceptual approach. This study's results indicate a constitutional evil in the form of neglect or disobedience to the decision. In that context, institutiona...

Constitutional Court in Indonesia

Jurnal Hukum & Pembangunan

This idea is a reflection of the aspiration of the lndonesian people to build up a democratic and justice society. The problem is where is the position of this institution in our state structure? The author express the alternative outlook that place "Pengadilan Tata Negara" (as the translation of Constitutional Court) under the Supreme Court and paralel with the four courts sub-system; not separate from the Supreme Court which is used the term "Mahkamah Konstitusi" as the other translation of the word Constitutional Court. To make this idea come true, the House of People's Representative (DPR) must use their right to amendment the Law No. 14/1970, especially the article on the structure of Indonesian court.

Constitutional Complaint in Indonesia Through the Lens of Legal Certainty

2021

To date, there is no trial mechanism for Indonesian citizens to claim their rights through the constitutional complaint, even if the Constitutional Court has existed since 2003. In fact, civil rights guaranteed in the 1945 Constitution are often ignored by the government even though these rights are essential in promoting the rule of law. This paper aims to revisit the range of constitutional complaints and further consequences about the legal certainty by taking into account the rationale of civil rights protection following the establishment of the Constitutional Court for adjudicating civil complaints. This study uses juridical research with normative and comparative approaches. In this context, a constitutional complaint is different from the judicial review for which, the actions of government officials are deemed to be detrimental and violate the constitutional rights of citizens. Rather, it is an adjudication for protecting civil rights when it is found the constitutional rig...