KONSTITUSIONALITAS PERLUASAN KEWENANGAN MAHKAMAH KONSTITUSI

Siti Ruhama M, Dr. Enny Nurbaningsih, S.H., M.Hum

2014 | Tesis | S2 Ilmu Hukum

The purpose of this study are, first, to determine the background of the expansion of 2 (two) constitutional court’s authorities, authority in examination of local election dispute and authority in judicial review of government regulation in lieu of law. Second, to determine that the expansion of constitutional court’s authorities can or can not be justified by the constitution and the theories of law. It is a normative judicial research by studying the literature to obtain secondary data. Data obtained from the research literature were then analyzed qualitively with a descriptive presentation then drawed the conclusion and the suggestion. The results show that, first, the background of the expansion of constitutional court’s authority are caused by Constitutional Court Decision Number 072-073/PUU-II/2005 which entry into force to some Acts, they are UU Nomor 22 Tahun 2007 and UU Nomor 12 Tahun 2008, especially article 236C. Second base of the expansion of constitutional court’s authority in examination of local election result dispute is Constitutional Court Decision Number 41/PHPU.D VI/2008 which declare that Constitutional Court has authority not only to examine of local election results but also to factors which caused local election result. While the second of the expansion of constitusional court’s authority based on Constitutional Court Decision Number 138/PUU-VII/2009 which declares that Constitutional Court has authority in judicial review to government regulation in lieu of law based on gramatical interpretation method and teleological or sociological interpretation method. Second, the expansion of the constitutional court’s authority which based on some Acts can not be justified by the constitution and theory of law because based on hierarchy of norm, Act is under the Constitution. The expansion of constitutional court’s authority based on Constitutional Court Decision Number 41/PHPU.D-VI/2008 can be justified because it’s reflect to responsiveness of law and accepted by most of Indonesian citiziens. The authority of Constitutional Court in judicial review to government regulation in lieu of law which based on Constitutional Court Decision Number Nomor 138/PUU-VII/2009 can not be justified because in this case, the judges of the Constitutional Court has oversteped on his authority because the procedure of examination of government regulation in lieu of law has been determined by the constitution, that is by legislative procedure.

The purpose of this study are, first, to determine the background of the expansion of 2 (two) constitutional court’s authorities, authority in examination of local election dispute and authority in judicial review of government regulation in lieu of law. Second, to determine that the expansion of constitutional court’s authorities can or can not be justified by the constitution and the theories of law. It is a normative judicial research by studying the literature to obtain secondary data. Data obtained from the research literature were then analyzed qualitively with a descriptive presentation then drawed the conclusion and the suggestion. The results show that, first, the background of the expansion of constitutional court’s authority are caused by Constitutional Court Decision Number 072-073/PUU-II/2005 which entry into force to some Acts, they are UU Nomor 22 Tahun 2007 and UU Nomor 12 Tahun 2008, especially article 236C. Second base of the expansion of constitutional court’s authority in examination of local election result dispute is Constitutional Court Decision Number 41/PHPU.D VI/2008 which declare that Constitutional Court has authority not only to examine of local election results but also to factors which caused local election result. While the second of the expansion of constitusional court’s authority based on Constitutional Court Decision Number 138/PUU-VII/2009 which declares that Constitutional Court has authority in judicial review to government regulation in lieu of law based on gramatical interpretation method and teleological or sociological interpretation method. Second, the expansion of the constitutional court’s authority which based on some Acts can not be justified by the constitution and theory of law because based on hierarchy of norm, Act is under the Constitution. The expansion of constitutional court’s authority based on Constitutional Court Decision Number 41/PHPU.D-VI/2008 can be justified because it’s reflect to responsiveness of law and accepted by most of Indonesian citiziens. The authority of Constitutional Court in judicial review to government regulation in lieu of law which based on Constitutional Court Decision Number Nomor 138/PUU-VII/2009 can not be justified because in this case, the judges of the Constitutional Court has oversteped on his authority because the procedure of examination of government regulation in lieu of law has been determined by the constitution, that is by legislative procedure.

Kata Kunci : Perluasan, Kewenangan, Mahkamah Konstitusi