Constitutional Law Society

PLURALISM AND SOCIAL JUSTICE IN PANCASILA DEMOCRACY: BETWEEN IDEALS AND REALITY

2025-02-12T15:08:02+08:00

The Reform Era, which began with the fall of the Suharto regime in 1998, marked a shift towards a democratic system of governance. This system is considered suitable for Indonesia’s highly pluralistic society. However, in practice, pluralism often serves merely as a rhetorical slogan to reinforce Indonesia’s national unity. The dominance of fundamentalist groups remains a significant challenge to democracy, as evidenced by various cases, including obstacles to the construction of places of worship, difficulties in civil registration for adherents of Indigenous beliefs, and the requirement for students practicing indigenous faiths to choose an officially recognized religion in the formal education system. Using a conceptual and descriptive approach, this study examines the concept of social justice within Pancasila democracy and explores efforts to achieve it. The findings indicate that social justice in Pancasila democracy is reflected in fulfilling individuals' right to develop their potential and meet their basic needs. This aligns with the national development goals outlined in the Preamble of the 1945 Constitution, which aims to promote general welfare and advance national intelligence. Achieving social justice within Pancasila democracy requires collective awareness of the importance of coexistence in diversity. This awareness can be fostered through participatory development models that engage all societal sectors, ensuring that development is not solely the government's responsibility. From a legal perspective, the construction of laws must be oriented towards social integration within Indonesia’s plural society.

UPHOLDING THE ERGA OMNES PRINCIPLE: THE ROLE OF CONSTITUTIONAL COURT DECISIONS IN THE FORMATION OF INDONESIA'S NEW PENAL CODE

2025-02-11T03:39:19+08:00

The erga omnes principle, denoting obligations owed universally rather than to specific parties, plays a crucial role in constitutional law and judicial review. In Indonesia, the Constitutional Court upholds this principle by ensuring its rulings have a binding effect on all legal actors and institutions. This paper examines how the Court's jurisprudence has shaped the new Indonesian Penal Code through landmark constitutional decisions. By analyzing key rulings that annulled provisions from the colonial-era Penal Code, this study explores the Court’s influence on legislative reform and human rights protections.

Utilizing normative legal research methods, including statute, case, and conceptual approaches, this study assesses how the Constitutional Court enforces the erga omnes principle through judicial review. The findings reveal that while several unconstitutional provisions from the old Penal Code were removed, some were reintroduced in the new code with modifications, often as complaint-based offenses to balance legal certainty with free expression. Despite these revisions, concerns persist regarding the potential misuse of reintroduced provisions to suppress dissent.

This study underscores the Constitutional Court’s role in safeguarding democracy by ensuring its decisions are universally applicable. However, challenges remain in enforcing compliance with its rulings. As Indonesia continues its legal evolution, ongoing judicial oversight will be essential to uphold constitutional supremacy, human rights, and the rule of law.

THE DPR'S RIGHT OF INTERPELLATION AND SUPERVISION OF THE PRESIDENT'S POLICY ON THE BAN ON THRIFTING IMPORTS OF USED CLOTHING

2025-02-04T22:20:17+08:00

The DPR as a representative and aspiration of the people can exercise the right of interpellation and oversight of the government. Oversight of the DPR is the President's policy which refers to the ban on thrifting imports of used clothing, causing upheaval in society. This policy is deemed not capable of realizing the concept of a rule of law state. So the problems are 1) What are the DPR's Interpellation Rights and oversight of the President's policy on the prohibition of Import Thrifting of used clothing? 2) What is the concept of an embodiment of the State Rule of Law on the prohibition of import thrifting of used clothes? This research methodology uses a normative review of the 1945 Constitution, Law no. 13 of 2019 concerning MD3 (MPR, DPR, DPD), Minister of Trade Regulation No. 18 of 2021 concerning Prohibition of Import of Goods. This research aims to find out the DPR's interpellation and oversight rights, the prohibition of the President's policy on the prohibition of Import Thrifting of used clothes. As well as knowing the concept of the rule of law state. Research results 1) The DPR can use the right of interpellation and supervision over the prohibition of Import Thrifting of used clothing by summoning and bringing together the government, used clothing traders, and clothing MSME traders to find a joint solution. 2) The DPR in realizing a rule of law state must be based on the rule of law, which is made for the welfare of the people and the common interest. Recommendation; The DPR not only oversees the government, but second-hand clothing traders are affected by the ban on finding other jobs.

THE ROLE OF OMBUDSMAN IN ENFORCING THE WHISTLEBLOWING SYSTEM IN INDONESIA

2025-02-03T16:17:19+08:00

Ombudsman is a part of an auxiliary state institution or often referred to as an auxiliary state organ in Indonesia. One of the duties and functions of the Ombudsman institution is to supervise the running of the public service system in Indonesia, the presence of this institution is expected to be able to improve the protection of people's rights in order to obtain public services, justice, and good welfare. The ombudsman institution has the authority to monitor and examine various reports based on complaints given by the public regarding the state administration system through the whistleblowing system that the Ombudsman of the Republic of Indonesia has. For the duties and functions of this Ombudsman institution which is considered strategic, which has been reviewed from the perspective of theory (auxiliary state organs) and the theory of authority, it is hoped that this institution can maintain stability between various other institutions in Indonesia. The method used in this study is doctrinal legal research and normative juridical research approach because this research takes a legal issue as a form of normative system such as laws and regulations. The results of the research that have been carried out show that the Ombudsman institution is considered to have a very crucial role in supervising all forms of the government public service implementation system in Indonesia through the whistleblowing system mechanism, then it needs to be strengthened again regarding the position of the Ombudsman as an auxiliary state organ and its authority to hold on to the products that can be produced by this institution only in the form of recommendations, not sanctions that can be binding.

COMPARISON OF LAWS REGULATION OF PROFESSIONAL ORGANIZATIONS OF ADVOCATES IN INDONESIA AND MALAYSIA

2025-02-04T16:15:55+08:00

Advocates are one of the main pillars in law enforcement in Indonesia. To strengthen the existence of advocates as the main pillar of law enforcement, Law No. 18 of 2003 concerning Advocates was established. The purpose of establishing the Advocates Law is to provide guarantees of professionalism, independence and independence of the profession by upholding the principles of the rule of law and the constitution. Regulating the advocate profession is very difficult. Since the Advocates Law was enacted until now, there have been frequent incidents within the advocate profession that have ended in judicial review to the Constitutional Court. The conflicts that often occur are related to the interpretation of the provisions of the article concerning advocate organizations. Initially, advocates designed advocate organizations with a single organizational system as formulated in Article 28 paragraph (1) of the Advocates Law which states that: "advocates organizations are the only free and independent advocate profession forum formed in accordance with the provisions of this law with the intent and purpose of improving the quality of the advocate profession." This article often covers between advocate organizations that adhere to a single organizational system (single bar system) with advocates who are accommodated by more than one organization (ulti bar system). The conflict between advocate organizations indirectly brings the Supreme Court Institution into a vortex of problems related to the authority to organize the swearing-in of Advocates. The Supreme Court Letter Number: 73/KMA/HK.01/IX/2015 dated September 25, 2015 has opened up an opportunity for Advocate Organizations other than PERADI to encourage the swearing-in of Prospective Advocates at the High Court in the Advocate's domicile jurisdiction. With its emergence The Supreme Court's letter adds new polemics amidst the division of the Advocates' organization which has not been managed well. Unlike Indonesia, the Advocates' Professional Organization in Malaysia is known as the Malaysian Bar (Badan Peguam Malaysia), which is a Legal Entity established based on the Advocates and Lawyers Act of 1947 and was later revoked and replaced by the Legal Profession Act 1976 or the Legal Profession Act of 1976. The organization is an Independent Lawyer organization that aims to uphold the supremacy of law and justice and protect the interests of the legal profession and the community. Every advocate and lawyer in Malaysia automatically becomes a member of the Malaysian Bar, as long as he or she has a valid Practice Certificate. In Malaysia, an Advocate's License is not based on the Court Oath Report but is sufficient with a Practice Certificate issued by the Malaysian Bar Association. PERADI, which is the sole advocate organization based on the mandate of Law No. 18 of 2003, is in fact very different from the sole advocate profession organization in Malaysia known as the Malaysian Bar Association. This article compares the regulation of the advocate profession in Indonesia which adopts a civil law system with Malaysia which adopts a common law system. The purpose of writing this article is to: first, analyze and compare the rules related to the Advocate Profession and Law Enforcement in Indonesia and Malaysia; second, analyze the regulation of the advocate profession organization in Indonesia by comparing the regulatory system in Malaysia. This normative legal research uses a statute approach and a comparative approach. Based on the results of the study, it was found that the rules related to advocates and advocate organizations have been regulated in Law No. 8 of 1981 concerning the Criminal Procedure Code, Law No. 48 of 2009, Law No. 18 of 2003 concerning Advocates and the Constitutional Court Decision Number 66/PUU-VIII/2010 dated June 27, 2011 and the Constitutional Court Decision Number 35/PUU-XVII/2018. The doctrine of comparative law can be used so that this method can improve the regulation of advocate organizations as law enforcers who provide certainty and justice to the community.

TRANSPARENCY OF VITAE OF LEGISLATIVE CANDIDATES IN THE 2024 ELECTIONS

2025-02-06T15:49:06+08:00

One of the information provided by the The General Election Commission a curriculum vitae of legislative candidates in the legislative elections. Historical life list information is useful for voters as material for consideration in determining their choice according to their preferences. In this article, we will examine how public information disclosure is implemented, especially the curriculum vitae of legislative candidates in the 2024 Legislative Election and how it will affect the The General Election Commission if it does not implement election information disclosure. The method used in this writing is normative juridical with a statutory and contextual approach. The research results show that in the 2024 Legislative Election the percentage of legislative candidates who open their curriculum vitae is greater than the legislative candidates who do not open their curriculum vitae. This phenomenon is caused by the absence of binding regulations that require legislative candidates to open a curriculum vitae. The General Election Commission gives each legislative candidate the freedom to open or not make a curriculum vitae. This step is a form of The General Election Commission effort to carry out public information disclosure. The General Election Commission will be subject to criminal sanctions if it does not carry out information disclosure in accordance with Public Information Openness Law.

ANALYSIS OF REGIONAL AUTHORITY IN THE FORMATION OF LOCAL REGULATIONS BASED ON PANCASILA IDEOLOGY

2025-01-30T21:55:22+08:00

This research analyses the local authority in the formation of local regulations (Perda) based on the ideology of Pancasila. As a country with a decentralised system, Indonesia gives authority to local governments to form local regulations according to the needs of each region. However, in its implementation, this authority must remain in line with the principles contained in Pancasila as the basis of the state. This research uses normative legal research method with statute approach and conceptual approach. The data source used is secondary data consisting of laws and regulations, court decisions, and relevant legal literature. The results show that in the formation of local regulations, local governments must pay attention to the principles of the formation of good laws and regulations as stipulated in Law Number 12 of 2011 concerning the Formation of Laws and Regulations. In addition, there is a supervisory mechanism from the central government and the Supreme Court to ensure that the Perda formed does not conflict with higher regulations and the values of Pancasila. This research recommends strengthening the synergy between local and central government in drafting local regulations, as well as increasing public participation to ensure that any local regulations formed truly reflect the values of Pancasila and the interests of the community at large.

LAW ENFORCEMENT AGAINST AIR POLLUTION SIYASAH TANFIDZIYAH PERSPECTIVE (CASE STUDY IN PAREPARE CITY)

2025-01-31T21:51:56+08:00

Through Parepare City Regional Regulation No. 2 of 2011 concerning Environmental Protection and Management, to further guarantee legal certainty and provide protection for everyone's right to a good and healthy living environment as part of the protection of the entire ecosystem, it is necessary to carry out appropriate environmental management. can maintain and preserve environmental functions. as implementation of Law no. 32 of 2009 concerning Environmental Protection and Management. The purpose of this research is to analyze Law Enforcement Against Air Pollution in Parepare City from the Siyasah Tanfidziyah Perspective. The research approach used in this research is a qualitative approach, with the type of research used being empirical juridical research, with descriptive qualitative data. Using environmental law enforcement theory, and Siyasah Tanfidziyah. The results of this research show that the impact of air pollution resulting from the tire retreading business in Parepare City has a negative impact on the community around the business location. The negative impact felt by the community around the business location is that every day they breathe unhealthy air due to smoke and community activities. disrupted, the law enforcement process regarding air pollution in Parepare City carried out by Parepare City DLH cannot be said to be upheld, because several factors in determining the enforcement of a law are influenced by the effectiveness of law enforcement. In determining whether law enforcement is effective or not it is influenced by several factors. namely law enforcement factors, facilities or facilities factors, and community factors. And referring to the perspective of siyasah tanfidziyah towards law enforcement, looking at several factors from law enforcement theory and environmental theory it cannot be said to be effective because based on the perspective of siyasah tanfidziyah theory there are still many factors that have not been implemented properly in accordance with the instructions in the Al-Quran.

DYNAMICS OF PANCASILA AS A BASIS FOR THE QUALITY OF INDONESIAN LEGISLATION: A POSITIVE LAW PERSPECTIVE AND THE CONSTITUTIONAL COURT'S DECISION

2025-01-31T21:33:27+08:00

This article interrogates the dimensions of the fifth-generation national philosophy of Indonesia, the 'Pancasila', and its potential to serve as the cornerstone for enhancing the quality of legislation in Indonesia. The prevailing concern is that the quality of Indonesian legislation is frequently compromised in terms of material and formal aspects, irrespective of the multidimensional, multidisciplinary, and even cross-border challenges confronting various developing countries. In order to address these concerns, it is imperative to delve into the fundamental principles of the 'Pancasila', with a view to contributing to the development of a future legal framework characterised by enhanced quality. The present article is limited to two main issues, namely (1) the dynamics of the five principles of the Indonesian state ideology as a legal ideal, and (2) the futuristic dimension based on positive law and the Constitutional Court's decisions related to the aforementioned principles as a basis for improving the quality of future legislation. The results obtained demonstrate that the recognition of the inseparable nature of the five principles of the United Nations as a legal ideal and the primary source of national law is paramount. This underscores the necessity for future legislative formations to deliberate on the incorporation of the principles of the Pancasila as a consideration in enhancing the quality of future legislation.

COMPARISON OF MSME POLICY LEGAL IN VARIOUS COUNTRIES

2025-01-31T17:47:15+08:00

Micro, Small and Medium Enterprises or commonly known as MSMEs have an important role in the current global economy, especially in Indonesia. However, the regulations and policies governing this sector in each country are different, depending on the legal system and economic policies implemented in that country. This study aims to analyze and compare legal policies related to MSMEs in several countries, including Indonesia, the United States, Japan and Germany. By using normative and comparative research methods, the results of this research reveal the various approaches taken by these countries in supporting MSMEs, both in terms of regulations, tax incentives, access to capital and legal protection. The policies taken by each country are policies that encourage the growth and development of MSMEs in that country where there are several similarities and differences related to existing regulations in Indonesia itself, for this reason there needs to be a common perception between institutions that have programs development of MSMEs to synergize to support existing policies as a form of implementation.