Pub Date : 2023-12-21DOI: 10.25041/constitutionale.v4i2.3135
Mr Masduki
Democratic States generally elect a National Leadership to lead a State through the General Election process. In Indonesia itself, post-reform, to determine the position of replacing the National Leadership using the General Election system as stipulated in the constitution with the principles of direct, general, free, secret, honest, and fair which are held every 5 years. Before being elected, the National Leadership in Indonesia must be carried out by political parties in order to become the main spearhead of the people in a Democratic State. However, in determining candidates for National Leadership, it is necessary to carry out recruitment organized by political parties to adjust the vision and mission of political parties and according to the interests and needs of the people. However, there are legal loopholes in the recruitment process for political parties which will have legal ramifications for Indonesia's democratic system. This study uses a normative legal method, with a statutory approach and literature study. This study concludes that there were various legal loopholes contained in the Political Party Law which then collided with the System for Supporting National Leadership Candidates listed in the Election Law which resulted in a regradation of the nature of democracy in Indonesia. Therefore it is necessary to improve the legal loopholes contained in the Law on Political Parties and the Law on Elections to provide concrete improvements system in the recruitment and formation of National Leadership. Such improvement is necessary in an attempt to avoid instant with the hope of avoiding instant recruitment which in terms of national leadership results in the depravity of the state system and leads to a recruitment system that runs in accordance with democracy.
{"title":"The Gap in the National Leadership Recruitment Law By Post Reform Political Parties in Indonesia","authors":"Mr Masduki","doi":"10.25041/constitutionale.v4i2.3135","DOIUrl":"https://doi.org/10.25041/constitutionale.v4i2.3135","url":null,"abstract":"Democratic States generally elect a National Leadership to lead a State through the General Election process. In Indonesia itself, post-reform, to determine the position of replacing the National Leadership using the General Election system as stipulated in the constitution with the principles of direct, general, free, secret, honest, and fair which are held every 5 years. Before being elected, the National Leadership in Indonesia must be carried out by political parties in order to become the main spearhead of the people in a Democratic State. However, in determining candidates for National Leadership, it is necessary to carry out recruitment organized by political parties to adjust the vision and mission of political parties and according to the interests and needs of the people. However, there are legal loopholes in the recruitment process for political parties which will have legal ramifications for Indonesia's democratic system. This study uses a normative legal method, with a statutory approach and literature study. This study concludes that there were various legal loopholes contained in the Political Party Law which then collided with the System for Supporting National Leadership Candidates listed in the Election Law which resulted in a regradation of the nature of democracy in Indonesia. Therefore it is necessary to improve the legal loopholes contained in the Law on Political Parties and the Law on Elections to provide concrete improvements system in the recruitment and formation of National Leadership. Such improvement is necessary in an attempt to avoid instant with the hope of avoiding instant recruitment which in terms of national leadership results in the depravity of the state system and leads to a recruitment system that runs in accordance with democracy.","PeriodicalId":52591,"journal":{"name":"Constitutionale","volume":"51 12","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138949892","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-15DOI: 10.25041/constitutionale.v4i2.3167
Kelik Iswandi
The growth of state auxiliary organs increases the possibility of conflicting authority. Regrettably, the Indonesian Constitutional Court can only settle authority disputes between constitutional state organs. It is based on Article 24C 1945 Constitution jo. Article 61 Constitutional Court Act 2003 jo. Article 2 Constitutional Court Regulation No. 08/PMK/2006. Thus, how does does authority dispute resolution involve state auxiliary organs? This subject is addressed by normative legal research, which examines secondary evidence in the form of laws, Constitutional Court decisions, and doctrines. Based on the statutatory and conceptual approaches, it is found that the rule of legal standing leads to multiple interpretations about which state organ can have a legal standing in the constitutional court. Furthermore, the legal standing requirements are quite narrow and need to be strengthened to respond to the constitutional dynamics in Indonesia, particularly with the emergence of state auxiliary organs. According to this study, state auxiliary organs, particularly those with constitutional importance, can fulfill legal standing standards. While for the authority dispute which involves other state auxiliary organs, it can be resolved based on their legitimacy. Therefore, Constitutional Court Regulation No. 08/PMK/2006 must be revised to accommodate the settlement of authority disputes between state auxiliary organs.
{"title":"Extending the Legal Standing on Authority Disputes at the Indonesian Constitutional Court","authors":"Kelik Iswandi","doi":"10.25041/constitutionale.v4i2.3167","DOIUrl":"https://doi.org/10.25041/constitutionale.v4i2.3167","url":null,"abstract":"The growth of state auxiliary organs increases the possibility of conflicting authority. Regrettably, the Indonesian Constitutional Court can only settle authority disputes between constitutional state organs. It is based on Article 24C 1945 Constitution jo. Article 61 Constitutional Court Act 2003 jo. Article 2 Constitutional Court Regulation No. 08/PMK/2006. Thus, how does does authority dispute resolution involve state auxiliary organs? This subject is addressed by normative legal research, which examines secondary evidence in the form of laws, Constitutional Court decisions, and doctrines. Based on the statutatory and conceptual approaches, it is found that the rule of legal standing leads to multiple interpretations about which state organ can have a legal standing in the constitutional court. Furthermore, the legal standing requirements are quite narrow and need to be strengthened to respond to the constitutional dynamics in Indonesia, particularly with the emergence of state auxiliary organs. According to this study, state auxiliary organs, particularly those with constitutional importance, can fulfill legal standing standards. While for the authority dispute which involves other state auxiliary organs, it can be resolved based on their legitimacy. Therefore, Constitutional Court Regulation No. 08/PMK/2006 must be revised to accommodate the settlement of authority disputes between state auxiliary organs.","PeriodicalId":52591,"journal":{"name":"Constitutionale","volume":"52 3S","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138996377","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-15DOI: 10.25041/constitutionale.v4i2.3164
Erina Pane, Tryan Zaki Aulia Yanis
Persons with disabilities have political rights. The right to vote and the right to be elected in general elections. This article examines the political rights of persons with disabilities to be elected in general elections. This is important because the representation of persons with disabilities in the public sphere will voice the rights of persons with disabilities. The purpose of this research is to identify the factors that influence the lack of fulfillment of these political rights for persons with disabilities and to examine the fulfillment of their political rights through affirmative policies. The method used in this research is qualitative with a descriptive analytical approach. Primary data was obtained through in-depth interviews with several informants. Factors contributing to the lack of fulfillment of the political rights of persons with disabilities include education level, welfare, and lack of support from the environment and family. Affirmative policies can serve as an alternative to represent persons with disabilities in the public sphere.
{"title":"Affirmative Policy A Necessity for Fulfilling the Political Rights of Persons with Disabilities","authors":"Erina Pane, Tryan Zaki Aulia Yanis","doi":"10.25041/constitutionale.v4i2.3164","DOIUrl":"https://doi.org/10.25041/constitutionale.v4i2.3164","url":null,"abstract":"Persons with disabilities have political rights. The right to vote and the right to be elected in general elections. This article examines the political rights of persons with disabilities to be elected in general elections. This is important because the representation of persons with disabilities in the public sphere will voice the rights of persons with disabilities. The purpose of this research is to identify the factors that influence the lack of fulfillment of these political rights for persons with disabilities and to examine the fulfillment of their political rights through affirmative policies. The method used in this research is qualitative with a descriptive analytical approach. Primary data was obtained through in-depth interviews with several informants. Factors contributing to the lack of fulfillment of the political rights of persons with disabilities include education level, welfare, and lack of support from the environment and family. Affirmative policies can serve as an alternative to represent persons with disabilities in the public sphere.","PeriodicalId":52591,"journal":{"name":"Constitutionale","volume":"101 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138998645","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Legal protection of human rights (HAM) is sought to avoid discriminatory acts, especially the midwifery sector as the fulfillment of basic rights inherent and protected by the constitution as stipulated in article 27 paragraph (2) of the 1945 Constitution of the Republic of Indonesia which states that every citizen has the right to work and a decent living for humanity. Thus violating the right to obtain work between men and women is a violation of human rights. However, Law Number 4 of 2019 Concerning Midwifery contains elements of discrimination in the midwifery profession, where men cannot become midwives, only limited to becoming obstetricians. Meanwhile, women have the freedom to choose to become midwives or obstetricians. The discrimination contained in the Midwifery Law needs to be analyzed from the perspective of the 1945 Constitution, as well as comparing regulations with the Netherlands to be able to describe the problem in depth. This research uses a normative-empirical legal method, which is a research method that will be studied combining 2 elements, namely normative legal elements and empirical legal elements. Normative law is based on literature data such as books in legal science literature, doctrines or expert opinions, scientific papers, articles, and journals, legislation and internet pages related to the problems in this study with author that can be accounted for. Empirical law is carried out based on field data as the main data source, which is generated through interviews with several informants related to the problems in this study. The results show that the formation of Law Number 4 of 2019 concerning Midwifery is considered contrary to some of the contents of the articles contained in the 1945 Constitution of the Republic of Indonesia, and the development of midwifery regulations in Indonesia needs to follow the example of the Netherlands by continuing to make men able to work as midwives, provided that the patient's consent is obtained.
{"title":"Gender Equality in Law Number 4 of 2019 Concerning Midwifery as a Fulfillment of Citizens' Constitutional Rights","authors":"Monica Viny Angraini, Yusnani Hasyimzum, Martha Riananda","doi":"10.25041/constitutionale.v4i2.3138","DOIUrl":"https://doi.org/10.25041/constitutionale.v4i2.3138","url":null,"abstract":"Legal protection of human rights (HAM) is sought to avoid discriminatory acts, especially the midwifery sector as the fulfillment of basic rights inherent and protected by the constitution as stipulated in article 27 paragraph (2) of the 1945 Constitution of the Republic of Indonesia which states that every citizen has the right to work and a decent living for humanity. Thus violating the right to obtain work between men and women is a violation of human rights. However, Law Number 4 of 2019 Concerning Midwifery contains elements of discrimination in the midwifery profession, where men cannot become midwives, only limited to becoming obstetricians. Meanwhile, women have the freedom to choose to become midwives or obstetricians. The discrimination contained in the Midwifery Law needs to be analyzed from the perspective of the 1945 Constitution, as well as comparing regulations with the Netherlands to be able to describe the problem in depth. This research uses a normative-empirical legal method, which is a research method that will be studied combining 2 elements, namely normative legal elements and empirical legal elements. Normative law is based on literature data such as books in legal science literature, doctrines or expert opinions, scientific papers, articles, and journals, legislation and internet pages related to the problems in this study with author that can be accounted for. Empirical law is carried out based on field data as the main data source, which is generated through interviews with several informants related to the problems in this study. The results show that the formation of Law Number 4 of 2019 concerning Midwifery is considered contrary to some of the contents of the articles contained in the 1945 Constitution of the Republic of Indonesia, and the development of midwifery regulations in Indonesia needs to follow the example of the Netherlands by continuing to make men able to work as midwives, provided that the patient's consent is obtained.","PeriodicalId":52591,"journal":{"name":"Constitutionale","volume":"10 7","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138584465","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-30DOI: 10.25041/constitutionale.v4i2.3196
Yasir Adi Pratama
The issue of publishing information and electronic data that fall under the category of state secrets via cyberspace remains unregulated in Indonesia, leading to a complex debate between the state's secrecy and the public's right to access information. This tension has been further intensified by the Fourth Industrial Revolution and the widespread availability of information, making it difficult to distinguish between state secrets and public information. As a result, individuals or entities who disseminate state secrets through cyberspace may not be held accountable unless specific regulations are established. This study adopts a normative juridical approach with a legal and conceptual framework to examine the intersection of state secrets and the publication of information through cyberspace, examining relevant provisions from existing laws and regulations. The study's findings may provide the legal vacuum concerning the criminalization of individuals who have published information or electronic information that may be categorized as state secrets through cyberspace..
{"title":"Legal Framework Publication of State Secrets via Cyberspace in Indonesia","authors":"Yasir Adi Pratama","doi":"10.25041/constitutionale.v4i2.3196","DOIUrl":"https://doi.org/10.25041/constitutionale.v4i2.3196","url":null,"abstract":"The issue of publishing information and electronic data that fall under the category of state secrets via cyberspace remains unregulated in Indonesia, leading to a complex debate between the state's secrecy and the public's right to access information. This tension has been further intensified by the Fourth Industrial Revolution and the widespread availability of information, making it difficult to distinguish between state secrets and public information. As a result, individuals or entities who disseminate state secrets through cyberspace may not be held accountable unless specific regulations are established. This study adopts a normative juridical approach with a legal and conceptual framework to examine the intersection of state secrets and the publication of information through cyberspace, examining relevant provisions from existing laws and regulations. The study's findings may provide the legal vacuum concerning the criminalization of individuals who have published information or electronic information that may be categorized as state secrets through cyberspace..","PeriodicalId":52591,"journal":{"name":"Constitutionale","volume":"387 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139203213","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-30DOI: 10.25041/constitutionale.v4i2.3144
Kaharuddin Kaharuddin, Gilang Abi Zaifa, Rianda Dirkareshza
As a state of law, Indonesia certainly cannot be separated from legal policies in terms of drafting laws and regulations. The definition of legal policy is legal policy as a means and procedure that can be used by the government to build a legal system. Based on this, a problem formulation is drawn, namely about how the political pattern of legislation in the Job Creation Law and how the development and participation of the community in making the Job Creation Law. The research method used is normative research, and the approach used is a statutory and conceptual approach. The result of the discussion is that the political pattern determines the purpose of what will be compiled in laws and regulations. In Indonesia, its formation must be based on Pancasila where Pancasila is the fundamental norm of the state. The development of an increasingly critical and wise society must certainly receive attention in order to be involved in the formation of laws and regulations. Community involvement here aims to later the rules formed can be useful for the community.
{"title":"Dynamics of Formil Legal Procedures Establishment of Laws and Regulations","authors":"Kaharuddin Kaharuddin, Gilang Abi Zaifa, Rianda Dirkareshza","doi":"10.25041/constitutionale.v4i2.3144","DOIUrl":"https://doi.org/10.25041/constitutionale.v4i2.3144","url":null,"abstract":"As a state of law, Indonesia certainly cannot be separated from legal policies in terms of drafting laws and regulations. The definition of legal policy is legal policy as a means and procedure that can be used by the government to build a legal system. Based on this, a problem formulation is drawn, namely about how the political pattern of legislation in the Job Creation Law and how the development and participation of the community in making the Job Creation Law. The research method used is normative research, and the approach used is a statutory and conceptual approach. The result of the discussion is that the political pattern determines the purpose of what will be compiled in laws and regulations. In Indonesia, its formation must be based on Pancasila where Pancasila is the fundamental norm of the state. The development of an increasingly critical and wise society must certainly receive attention in order to be involved in the formation of laws and regulations. Community involvement here aims to later the rules formed can be useful for the community.","PeriodicalId":52591,"journal":{"name":"Constitutionale","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139200388","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-30DOI: 10.25041/constitutionale.v4i1.2949
Maghfira Nur Khaliza Fauzi
The existence of goals in the state is in accordance with Emmanuel Kant's opinion that the existence of guarantees relating to the formation and defense is to improve the position of the law. There is a strong impetus that needs to be realized optimally when there is a change in the legal politics of state power, mainly so that there is no deviation from the direction of the law that will make it difficult to achieve the essence of the state. So how is the history related to the dynamics of legal politics in Indonesian state administration, political intervention in the development of Indonesian state administration, and finally how is the comparison of legal politics in national law and Islamic law. The problem approach used in this research is a normative approach. The normative approach is an approach that is carried out by collecting and studying applicable legal regulations that are closely related to research problems which include laws and regulations, official documents, and other sources. The results show that the reflection of the development or dynamics of legal politics in its influence on state administration includes the formation of laws and related authorities between each state institution, which is the basis for the direction of current state development. In this case, it is also seen that the role of legal politics can influence or intervene in the world of state administration, which is so dominating in various state administration structures. In this case, it is also necessary to see the role of legal politics in Islamic law, which is considered to play an important role historically in basic arrangements and is one of the factors in forming the pillars of state administration in Indonesia.
{"title":"Reflection of Political Law in the Development of State Constitution in Indonesia","authors":"Maghfira Nur Khaliza Fauzi","doi":"10.25041/constitutionale.v4i1.2949","DOIUrl":"https://doi.org/10.25041/constitutionale.v4i1.2949","url":null,"abstract":"The existence of goals in the state is in accordance with Emmanuel Kant's opinion that the existence of guarantees relating to the formation and defense is to improve the position of the law. There is a strong impetus that needs to be realized optimally when there is a change in the legal politics of state power, mainly so that there is no deviation from the direction of the law that will make it difficult to achieve the essence of the state. So how is the history related to the dynamics of legal politics in Indonesian state administration, political intervention in the development of Indonesian state administration, and finally how is the comparison of legal politics in national law and Islamic law. The problem approach used in this research is a normative approach. The normative approach is an approach that is carried out by collecting and studying applicable legal regulations that are closely related to research problems which include laws and regulations, official documents, and other sources. The results show that the reflection of the development or dynamics of legal politics in its influence on state administration includes the formation of laws and related authorities between each state institution, which is the basis for the direction of current state development. In this case, it is also seen that the role of legal politics can influence or intervene in the world of state administration, which is so dominating in various state administration structures. In this case, it is also necessary to see the role of legal politics in Islamic law, which is considered to play an important role historically in basic arrangements and is one of the factors in forming the pillars of state administration in Indonesia.","PeriodicalId":52591,"journal":{"name":"Constitutionale","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49391573","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Sustainable development in East Kalimantan requires guarantees of constitutional rights and an integrated environmental licensing system. This is important because development that does not pay attention to environmental aspects can have a negative impact on people's quality of life and environmental sustainability. The guarantee of constitutional rights is the first step in protecting people's rights to a healthy and sustainable environment. Meanwhile, an integrated licensing system can minimize adverse environmental impacts and increase compliance and transparency in decision-making. This study examines the importance of guaranteeing constitutional rights and an integrated licensing system in sustainable environmental development in East Kalimantan. The approach used is qualitative by using secondary data such as statutory documents and research reports. The research results show that constitutional rights guarantees and an integrated licensing system are essential in ensuring sustainable development in East Kalimantan. Guaranteed constitutional rights can provide legal certainty and protection of people's rights to a healthy and sustainable environment. Meanwhile, an integrated licensing system can help maintain environmental sustainability and provide legal certainty for investments in sectors that have an impact on the environment. However, there are still challenges in implementing constitutional rights guarantees and integrated licensing systems, such as coordination between agencies, limited human and technological resources, and public awareness about the importance of protecting the environment. Therefore, good coordination between the government, the community and the private sector is needed to protect the environment and ensure sustainable development in East Kalimantan.
{"title":"Constitutional Rights Guarantee and Integrated Licensing System for Sustainable Environmental Development in East Kalimantan","authors":"Dani Berlan Ramadhan, Shaffira Maharannie Putri Arkian Arief","doi":"10.25041/constitutionale.v4i1.2937","DOIUrl":"https://doi.org/10.25041/constitutionale.v4i1.2937","url":null,"abstract":"Sustainable development in East Kalimantan requires guarantees of constitutional rights and an integrated environmental licensing system. This is important because development that does not pay attention to environmental aspects can have a negative impact on people's quality of life and environmental sustainability. The guarantee of constitutional rights is the first step in protecting people's rights to a healthy and sustainable environment. Meanwhile, an integrated licensing system can minimize adverse environmental impacts and increase compliance and transparency in decision-making. This study examines the importance of guaranteeing constitutional rights and an integrated licensing system in sustainable environmental development in East Kalimantan. The approach used is qualitative by using secondary data such as statutory documents and research reports. The research results show that constitutional rights guarantees and an integrated licensing system are essential in ensuring sustainable development in East Kalimantan. Guaranteed constitutional rights can provide legal certainty and protection of people's rights to a healthy and sustainable environment. Meanwhile, an integrated licensing system can help maintain environmental sustainability and provide legal certainty for investments in sectors that have an impact on the environment. However, there are still challenges in implementing constitutional rights guarantees and integrated licensing systems, such as coordination between agencies, limited human and technological resources, and public awareness about the importance of protecting the environment. Therefore, good coordination between the government, the community and the private sector is needed to protect the environment and ensure sustainable development in East Kalimantan.","PeriodicalId":52591,"journal":{"name":"Constitutionale","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46896608","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-30DOI: 10.25041/constitutionale.v4i1.2943
Andre Arya Pratama
Children as victims of criminal acts of sexual violence essentially need to get the protection of the welfare and the right to return to grow and develop in accordance with the 1945 Constitution. Losses suffered by children need to be claimed through criminal compensation to the perpetrator or third person, namely the submission of the right to restitution. The mechanism for filing the right to restitution has certainly developed in the rule of law. However, until now it is still an obstacle for victims in fulfilling the filing requirements based on Government Regulation Number 43 of 2017. Of course this will make it difficult for victims to get justice as they should. This article will use normative research, where this research describes the analysis of the problems presented in the research using laws and regulations that refer to Law Number 31 of 2014 and Government Regulation Number 43 of 2017 in accordance with the scope of the discussion of applicable law and comes from literature journals and other sources of information that become references for the author to collect data to complete this research. The results show that the mechanism for implementing the right to restitution is difficult to implement, especially considering that victims tend to be unfamiliar with the law, besides that there are still perpetrators who generally come from the closest family and are not capable and have not regulated the nominal amount of payment that the perpetrator must fulfill. Therefore, it is necessary to reformulate the applicable regulations and related institutions need to play an active role in facilitating victims to fulfill the rights that should be obtained from a criminal offense as a form of effort to realize Human Rights (HAM) itself in the constitutional guarantees of citizens, especially children.
{"title":"Reformulation of Children’s Restitution to Guarantee Their Constitutional Rights","authors":"Andre Arya Pratama","doi":"10.25041/constitutionale.v4i1.2943","DOIUrl":"https://doi.org/10.25041/constitutionale.v4i1.2943","url":null,"abstract":"Children as victims of criminal acts of sexual violence essentially need to get the protection of the welfare and the right to return to grow and develop in accordance with the 1945 Constitution. Losses suffered by children need to be claimed through criminal compensation to the perpetrator or third person, namely the submission of the right to restitution. The mechanism for filing the right to restitution has certainly developed in the rule of law. However, until now it is still an obstacle for victims in fulfilling the filing requirements based on Government Regulation Number 43 of 2017. Of course this will make it difficult for victims to get justice as they should. This article will use normative research, where this research describes the analysis of the problems presented in the research using laws and regulations that refer to Law Number 31 of 2014 and Government Regulation Number 43 of 2017 in accordance with the scope of the discussion of applicable law and comes from literature journals and other sources of information that become references for the author to collect data to complete this research. The results show that the mechanism for implementing the right to restitution is difficult to implement, especially considering that victims tend to be unfamiliar with the law, besides that there are still perpetrators who generally come from the closest family and are not capable and have not regulated the nominal amount of payment that the perpetrator must fulfill. Therefore, it is necessary to reformulate the applicable regulations and related institutions need to play an active role in facilitating victims to fulfill the rights that should be obtained from a criminal offense as a form of effort to realize Human Rights (HAM) itself in the constitutional guarantees of citizens, especially children.","PeriodicalId":52591,"journal":{"name":"Constitutionale","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46791474","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-30DOI: 10.25041/constitutionale.v4i1.2951
Ousu Mendy
While there is strong advocacy globally on human rights, little attention is paid to constitutional rights in some countries. Many constitutions contain constitutional rights, which are mainly referred to as the bill of rights in their constitutions. This piece presents a comparative exposition of the constitutional rights in The Gambia and Indonesia as constitutional states. Both countries are sovereign, and the strength and lethargy in enforcing these rights in these countries are of great significance in this research. In this research, empirical and normative research approaches are taken to examine both primary and secondary data. Primary materials like the constitutions of the two countries, legislation and court cases on constitutional rights are used. Secondary materials like articles and books are sufficiently used to support this research. Cognizant that a constitution is both a legal and political instrument, the Constitutional Court of Indonesia is undermined to a certain extent by both the House of Representatives and the Executive, and The Gambia’s sparing moments in disobeying High Court orders as regards constitutional rights, this research finally reaches an informed verdict that constitutional rights are different from human rights and approaches to their enhancement ought to be premised on citizenship. The inclusion of legal provisions in constitutions does not, ex cathedra, make institutions strong. Therefore, both countries need a paradigm shift in their national mechanisms to strengthen the institutions that enforce these rights despite the institutional differences in socio-political and socio-legal structures. To do this, the constitutional defense bodies must be comparatively autonomous from other institutions exercising the legislative, executive, and judicial functions to carry out such activities to increase individuals’ and States’ respect for the constitutions and the law and the constitutional rights guaranteed by these constitutions will make fresh and significant strides.
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