English (United Kingdom)

https://curated-unify.zendy.io/wp-json/zendy-region/v1/featured_content/oa?rat=en

https://curated-unify.zendy.io/wp-json/zendy-region/v1/highlighted_journal/

Global: Zendy Plus annual

Presents the access of premium content as premium feature

Premium Content

Presents the keyphrase highlighting as premium feature

Keyphrase Highlighting

Presents the summarisation as premium feature

Summarisation

Insights

Presents the pdf analysis as premium feature

PDF Analysis

Presents the zaia usage as premium feature

ZAIA

Global: Zendy Tools annual

Global: Zendy Free Plan

Global: Zendy Tools monthly

Global: Zendy Plus monthly

The authority to examine the Law against the Constitution is carried out by the Constitutional Court and the testing of the laws and regulations under the Law on the Law is carried out by the Supreme Court as regulated in article 24 A paragraph 1 and 24 C paragraph 1 of the 1945 Constitution of the Republic of Indonesia. However, in the formulation of the article a quo it turns out still leaves a problem, namely not yet regulating the norm testing mechanism contained in the legislation under the legislation if it turns out it is not contrary to the law but contrary to the constitution. This paper analyzes the testing of the norms of the legislation through the 1945 Constitution of the Republic of Indonesia Republic IX concerning judicial authority in casu a quo article 24 A paragraph 1 and 24 C paragraph 1 of the 1945 Constitution of the Republic of Indonesia. Keyword: authority, law, the constitution. Administrative Law & Governance Journal. Volume 2 Issue 1, March 2020 ISSN. 2621–2781 Online Administrative Law & Governance Journal. Volume 3 Issue 1, March 2020 105 A. Introduction Indonesia is a country based on law, and not based on mere power. These provisions are contained in Article 1 Paragraph 3 of the 1945 Constitution of the Republic of Indonesia. The logical consequence of these provisions is that everything in this country is regulated based on legal and statutory provisions. As a country regulated by law, Indonesia also adheres to constitutionalism. This understanding is closely related to the state that is governed by law and makes the constitution as the highest law. Almost all countries in the world have the highest rules on which to run their respective countries. The highest rule is usually called the constitution. Most of the existence of a country's constitution begins with the practice of unlimited authority from a country's leadership. When a leader of the country acts arbitrarily, the people of that country then rebel and try to limit the arbitrary power. Efforts to limit the power of the authorities are then outlined in a text called the constitution. The constitution or what is often referred to as the constitution has a meaning according to K.C Wheare as quoted by Bagir Manan and Susi Dwi Harijanti is: first, in the broad sense the constitution is used to describe the whole system of government of a country, a collection of rules that shape and regulate government. There are rules that are legal in the sense that the court recognizes and applies these rules; secondly, in the strict sense, the constitution is a collection of rules governing the state contained in a document. Every country that places the constitution as the highest law means that it adopts constitutionalism. Based on the idea of constitutionalism, every time reading the provisions in the Constitution must be interpreted as a limitation of power. Power is limited by a set of rules that are binding on both the ruler and the people who are bound to the constitution as the highest law. The term constitutionalism means that the powers of government and 1 M. Yassin Al-Arif, “Aktualisasi Paham Konstitusionalisme dalam Konstitusi Pasca Amandemen Undang Undang Dasar 1945”, Jurnal Pandecta, Vol. 12 No. 2, 2017, p. 174. 2 Bagir Manan dan Susi Dwi Harijanti, Memahami Konstitusi Makna dan Aktualisasi, cet 1, (Jakarta, PT RajaGrafindo Persada, 2014), p.10. 3 Budiman N.PD. Sinaga dan Sahat H.M.T Sinaga, “Syarat Partai Politik Peserta Pemilihan Umum yang Inkonstitusional”, Jurnal Masalah-Masalah Hukum, Jilid 48. No. 3 Juli 2019, p. 253 Administrative Law & Governance Journal. Volume 2 Issue 1, March 2020 ISSN. 2621–2781 Online Administrative Law & Governance Journal. Volume 3 Issue 1, March 2020 106 leaders are limited and these restrictions can be enforced through the establishment of procedures. As a doctrine of political and legal institutions, this refers to the government which was originally devoted both to the good of the whole society and to protecting one's individual rights. However, there are problems in the legislative hierarchy system in Indonesia, namely the mechanism for testing the constitutionality of laws and regulations under laws that are not contrary to laws but are contrary to the constitution. The problem is in the mechanism of testing the norms of laws and regulations under the laws that conflict with the constitution, whether it is the authority of the Supreme Court or the Constitutional Court, because so far such testing mechanisms have not been regulated. Based on the provisions in Article 24 A Paragraph 1 of the 1945 Constitution of the Republic of Indonesia, it is regulated that the Supreme Court has the authority to adjudicate at the cassation level, examine the statutory provisions under the law against the law, and have other powers granted by law. Whereas the authority of the Constitutional Court is regulated in Article 24 C Paragraph 1 which regulates that the Constitutional Court has the authority to adjudicate at the first and last level the decision is final to examine the law against the Constitution, to decide on disputes over the authority of state institutions whose authority is granted by The Constitution, decides the dissolution of political parties, and resolves disputes over election results. This provision then becomes a gap if there are laws and regulations under the law which are in fact contrary to the constitution, because the 1945 Constitution of the Republic of Indonesia in casu a quo Article 24 A and Article 24 C concerning the authority of the Supreme Court and the Constitutional Court did not regulate the testing mechanism at all. the. The non-regulation of this provision certainly hinders the embodiment of the Indonesian state as a state of law and guarantor of human rights, because without the provisions of the norm testing, it is not impossible that there will be constitutional rights of citizens who have the potential to be violated. 4 Ibid, p. 177. 5 See more in the provisions of the 1945 Constitution of the Republic of Indonesia Chapter IX concerning Judicial Authority, Article 24 A Paragraph 1 and Article 24 C of the 1945 Constitution of the Republic of Indonesia concerning Judicial Authority. Administrative Law & Governance Journal. Volume 2 Issue 1, March 2020 ISSN. 2621–2781 Online Administrative Law & Governance Journal. Volume 3 Issue 1, March 2020 107 In this article, the writer focuses his study on the problems studied, namely: what is the mechanism for examining laws and regulations that are not contrary to the law but against the constitution?; and what will be achieved through the mechanism of testing the statutory provisions under the law against the constitution? B. Discussion As a constitutional state that embraces constitutionalism which places the constitution as the highest law. Constitutionalism has been widely recognized as a prerequisite for both democracy and the rule of law because it is based on three elements of agreement, namely: a). Agreement on common goals or goals (the general goals of society or general acceptance of the philosophy of government); b). Agreement on the rule of law as the basis of government or state administration (the basis of the govenment); and c). Agreement on the form of institutions and constitutional procedures (the form of institutions and procedures). Indonesia places the constitution as its highest law. As a country that places the constitution as the highest law, the constitution has a dual position, namely as the highest law and also as the basic law. The constitution as the highest law means that all existing legal rules must refer to the provisions contained in the constitution, while the constitution as the basic law means the constitution is the basis for the rule of law that is hierarchically under the constitution. Henc van Maarseven as quoted by I Dewa Gede Atmadja said that the material elements of the constitutional content can be classified as: (1) the constitution contains the basic laws of the state; (2) the constitution contains a set of basic rules which establish high state institutions; (3) the constitution contains very important rules about state institutions regarding their power and functional relations; (4) the constitution regulates the human rights and obligations of citizens and the government; (5) the constitution regulates and limits the power of the state and its institutions; (6) the 6 I Dewa Gede Palguna, Pengaduan Konstitusional (Constitutional Complaint) Upaya Hukum terhadap Pelanggaran Hak-Hak Konstitusional Warga Negara, (Jakarta, Sinar Grafika, 2013), p. 30. 7 I Dewa Gede Atmadja, Hukum Konstitusi Problematika Konstitusi Indonesia Sesudah Perubahan UUD 1945 Edisi Revisi, (Malang, Setara Press, 2009), p. 73. Administrative Law & Governance Journal. Volume 2 Issue 1, March 2020 ISSN. 2621–2781 Online Administrative Law & Governance Journal. Volume 3 Issue 1, March 2020 108 constitution implicitly contains the ideology of the ruling elite; and (7) the constitution also regulates the material relations between the state and society. The logical consequence of the above explanation is that the constitution as the highest law as well as the basic law must be further elaborated through the rules of the law underneath. This is consistent with Hans Kelsen's theory in his pure legal theory or known as stufenbau theorie that a legal norm must originate from a higher legal norm, whereas a higher legal norm must be sourced from a higher legal norm and so on so as to stem from the constitution. This theory was then continued by his student, Hans Nawianski who compiled the order of the laws and regulations which when adapted to Indonesia were as follows: 1). Staatsfundamentalnorm: Pancasila (Opening of the 1945 Constitution of the Republic of Indonesia); 2). Staatsgrundgesetz: Articles of the 1945 NRI Constitution; 3). Formal gezets: Law, and 4). Verordnung en autonome satzung: Hierarchically from go

Examine The Constitutionality Of Regulations Under Laws That Are Not Contrary To The Law But Contrary To The Constitution