Papers by MUCHAMAD ALI SAFA'AT
Asian Journal of Comparative Politics, 2022
This article analyzes the phenomenon of single candidates in Indonesia's 2020 local elections, wh... more This article analyzes the phenomenon of single candidates in Indonesia's 2020 local elections, where the number increased compared to the previous local elections. Although initially local elections with single candidates were not intended, by a ruling of the Constitutional Court a local election must still be carried out even if there is only a single pair of candidates. The number of single candidates has increased, as it becomes an easier and cheaper way to ensure victory, particularly for incumbents. This condition is strengthened by the culture of political parties that tend to provide support to candidates who possess a greater chance of winning in order to take control of the government and form political cartels. Although presently it has not been indicated that single candidates are a form of oligarchic rule and political dynasty, it may become an easy way to obtain political power.
Russian Journal of Agricultural and Socio-Economic Sciences, Mar 29, 2021
This article results from legal research on exploring the ratio legis for forming a special judic... more This article results from legal research on exploring the ratio legis for forming a special judicial body for regional head elections in Indonesia. This study aims to find and find legal reasons for regulating the establishment of a special Regional head elections judiciary body in Indonesia. The method used in this research is normative legal research with several approaches, including conceptual approaches, statutory approaches, comparative approaches, and historical approaches. This research concludes that the ratio legis as a reason for the birth of the mandate for establishing a special judicial body in article 157 both in Law Number 8 of 2015 and in Law Number 10 of 2016 is not sufficient. The search for ratio legis, which should be the essence of the subject matter's philosophical content, which is why the emergence of the phrase "the form of a special judicial body," is not too well debated academically. The concept of 'special judicial bodies' emerged and surfaced in the Regional head elections Bill more like a consensus or a "form of compromise" when The Constitutional Court of the Republic of Indonesia and the Supreme Court of the Republic of Indonesia shifted their authority to handle election disputes. It was then that an alternative emerged to form a special judicial body and a form of "way out of the deadlock situation" and as an "exit strategy" after the Constitutional Court Ruling Number 97 / PUU-XI / 2013. From the 'form' aspect of this special judicial body, it is not sufficient to get an adequate portion of the discussion. There is no discussion about what form, jurisdiction, and how the special judicial body's operation mechanism is concerned. On the aspect of 'form', which is an important "origin of being", there was not enough academic study or discourse before its birth.
International journal of social science research and review, Sep 21, 2022
Preliminary elections are urgent to be implemented in the presidential nomination system in Indon... more Preliminary elections are urgent to be implemented in the presidential nomination system in Indonesia. This needs to be done as an effort to create a more democratic and open mechanism for the presidential nomination, as well as a solution to determine the figure of the presidential and vice presidential candidates who will be elected in the general election, who really have high electability in society. Therefore, it is necessary to revise the Election Law, especially those related to the mechanism for nominating the President and Vice President.
In Indonesia, there is a nomination threshold often referred to as the Presidential Threshold in ... more In Indonesia, there is a nomination threshold often referred to as the Presidential Threshold in the mechanism to nominate a President and his/her Vice-President in the Election of the President. The stipulation of the threshold as a condition for Political Parties to nominate pairs of President and Vice President candidates in the General Election is 20% of the votes or 25% of the seats in the Representative House in the previous legislative elections. This arrangement caused controversy because it limited the rights of political parties as eligible election participants in nominating candidates for the presidential position. It also ignored political parties' constitutional rights. The threshold requirement for presidential candidacy is also known in Turkey. Turkey is the only country that the author found where the presidential nomination system uses a threshold requirement. However, the presidential nomination threshold in Turkey is only 5% or 100,000 voters from the previous parliamentary elections. Presidential elections in Turkey are carried out simultaneously between the legislative and presidential elections and apply a two-round system like in Indonesia. Therefore, the threshold for the presidential nomination in Indonesia needs to be reduced and even removed to not restrict political parties from proposing candidate pairs for the position of President and Vice.
International journal of social science research and review, Aug 21, 2022
The Presidential Election System in Indonesia is equipped with a unique mechanism that is not app... more The Presidential Election System in Indonesia is equipped with a unique mechanism that is not applicable in many other countries, namely the presidential nomination threshold by political parties or popularly known as the "Presidential Threshold". According to the Election Law, political parties need to have a minimum of twenty per cent of the Legislative House seats or twenty-five per cent of the votes cast in the most recent legislative member elections. Since this system was unconstitutional, it raised controversies because it limited the rights of established political parties and prevented new political parties from nominating presidential candidates. The purpose of this study is to ascertain the application of the Presidential Threshold process and its implications for the Indonesian general elections. This research is normative in nature. Three different approaches-the conceptual, legislative, and comparative ones-are employed. Legal primary and secondary sources of information were employed. A literature review was conducted to obtain data. Analysis of the data or legal materials is carried out by analytical prescriptive. The study concludes that raising the bar for presidential nominations results in several implications, including restricting political parties' ability to nominate candidates; weakening the essence of people's sovereignty; and contradicting the notions of justice and the presidential system. Because it does not pertain to the clauses outlined in the Republic of Indonesia's constitution, the regulation of the presidential nomination threshold in the Election Law should be deleted.
Brawijaya Law Journal, 2021
Local governments have undergone various regulatory developments since Indonesia's independence 7... more Local governments have undergone various regulatory developments since Indonesia's independence 75 years ago. Various aspects underlying the development and changes in local government policies can be analyzed using several approaches, such as historical, philosophical, and sociological. This paper will discuss how the legal politics of the development of local government implementation, especially in terms of decentralization. Furthermore, the author will explain about the opportunities for implementing decentralization based on regional capacity to promote welfare of society. This research is normative juridical research using historical approach, conceptual approach, and legal approach. It can be said that the implementation and development of local government implementation is strongly influenced by various aspects other than the legal factor itself. Furthermore, there is still the possibility of implementing decentralization based on regional capacity as an effort to promote social welfare.
Research, Society and Development, 2020
This article is a legal research which conducts a comparative study of the dispute resolution ins... more This article is a legal research which conducts a comparative study of the dispute resolution institutions between the Indonesian and Brazilian elections. The purpose of writing this article is to map the similarities and differences in the practice of dispute resolution between regional head elections in Indonesia and Brazil to take good aspects that are suitable for implementation in Indonesia. In the discussion, it also covers the practice of organizing elections, election management organs and institutions, including the practice of dispute resolution for Election / Pilkada in both countries. The research method used is normative legal research using primary legal materials in the form of statutory regulations and court decisions, using a comparative approach, a statutory approach and a conceptual approach. Conclusions from the discussion of the research results, the authors propose two institutional options for Pilkada dispute resolution in Indonesia: a) Establishing a special ...
Proceedings of the 2nd Annual Conference on Education and Social Science (ACCESS 2020), 2021
This article is the result of research on the dynamics of direct election conflict resolution ins... more This article is the result of research on the dynamics of direct election conflict resolution institutions in Indonesia from 2005 to 2020. This study examines regulations on Regional Head Election and law enforcement with a focus on the authority of the judiciary in resolving disputes over the results in Indonesia. The purpose of this research is to find the ideal model for a special Regional Head Election judiciary body in Indonesia. The method used in this research is a type of normative juridical research using legal materials, data, and several approaches commonly used in legal research, namely the statute approach, conceptual approach, case approach, and the historical comparative approach. The technique of collecting legal materials as data used in this study is library research using content analysis. Legal materials as data are then subjected to discussion, data analysis, and classification into certain groups to be analyzed into information. The results of this study conclude that the efforts to organize court institutions for dispute over the results of the Regional Election in Indonesia for the 2005-2020 period are very dynamic. As a conclusion and suggestions, the author proposes two institutional options for the settlement of Regional Head Election disputes which are (a) Establishing a Special Judiciary Body within the Civil Court of Justice which is domiciled in each provincial capital to adjudicate and decide on election disputes, with other expanded powers in the form of adjudicating Regional Head Election crimes as well as examining and adjudicating election, regional election, administrative process, and election disputes; or (b) Defining the authority of the Constitutional Court to adjudicate disputes over the results of the Regional Head Election (in addition to the PHPU) without any differentiation between the General Election and the Regional Head Election. Keywords-dynamics, settlement of disputes over results, regional head election Regarding the settlement of disputes over the results of the Regional Head Election, the government has recently passed the law Number 10 of 2016, where Article 157 paragraph (1) of this Law mandates "Election result dispute cases are examined and tried by a special judicial body". This special judicial body must be formed before the
WISDOM
The Republic of Indonesia’s Law no. 7 of 2017 requires presidential and vice-presidential candida... more The Republic of Indonesia’s Law no. 7 of 2017 requires presidential and vice-presidential candidates to be proposed by political parties that meet the requirements, namely obtaining at least 20% of the total Legislative House seats or nationally obtaining 25% of valid votes in the previous Legislative House election. This is not recognized in Article 6A paragraph (2) of the 1945 Constitution, the constitutional basis for nominating a president. This paper aims to provide a philosophical analysis on the presidential and vice-presidential electoral threshold. Results show that from a philosophical perspective, this threshold provisions eliminate the constitutional rights of the people and minor political parties to nominate presidential and vice-presidential candidates. There can only be a maximum of three political parties and the oligarch and large political parties will make sure that the candidates will only come from their parties. This threshold undermines the logic of the presi...
Nurani: Jurnal Kajian Syari'ah dan Masyarakat
The constitutional interpretation of the regulation of State-Owned Enterprises (BUMN) is still lo... more The constitutional interpretation of the regulation of State-Owned Enterprises (BUMN) is still looking for the right method, BUMN as the embodiment of the constitution for the state's responsibility in managing strategic resources that are used as wide as possible for the prosperity of the people. Submission of a judicial review to the Constitutional Court regarding BUMN can show the direction of constitutional interpretation given by the judges of the Constitutional Court. This article examines whether the constitutional interpretation of SOE arrangements is in accordance with Indonesia's national economic system. The method of approach in this writing is descriptive analysis which explains and analyzes the constitutional interpretation of SOE regulations. the results of the study reveal that the constitutional court has carried out its duties in accordance with the basic principles and principles of the constitution. The Constitutional Court in every decision in the field ...
Jurnal Konstitusi, 2017
Artikel ini berdasarkan hasil penelitian yang mengangkat permasalahan bagaimana pola penafsiran k... more Artikel ini berdasarkan hasil penelitian yang mengangkat permasalahan bagaimana pola penafsiran konstitusi putusan-putusan MK dalam perkara Pengujian Undang- Undang terhadap Undang-Undang Dasar. Sesuai dengan permasalahan yang diangkat, penelitian ini adalah penelitian doktrinal atau juga disebut sebagai penelitian normatif. Kesimpulan penelitian ini adalah; (1) tidak semua pertimbangan hukum putusan MK dalam perkara pengujian Undang-undang terhadap Undang-Undang Dasar memberikan penafsiran terhadap ketentuan UUD 1945 yang menjadi batu uji; (2) penafsiran yang digunakan dalam putusan MK pada umumnya adalah penafsiran originalis;(3) Hanya ada tiga putusan yang menggunakan penafsiran non originalis dengan pendekatan doktrin dan hukum alam, serta pendekatan etik; dan (4) tidak terdapat hubungan terpola antara metode penafsiran yang digunakan dengan bidang hukum ketentuan konstitusi maupun periodesasi hakim konstitusi.
Arena Hukum, 2018
Abstract The authority of judicial review of an Act by the Constitutional Court has a strategic ... more Abstract The authority of judicial review of an Act by the Constitutional Court has a strategic position in strengthening the rule of law in Indonesia, which is one of the characteristics is the recognition and protection of human rights. The Constitutional Court in exercising judicial review authority has interpreted various provisions of the 1945 Constitution on human rights. Some of which reinforce the meaning as grammatically read in the 1945 Constitution, but there are also decisions that mean differently than the grammatical meaning. This research was conducted to know the meaning of the provisions in the 1945 Constitution which regulate human rights, and to know whether through the Constitutional Court decision even change the meaning of human rights. This research method is normative juridical research. The approach used includes theoretical approach and conceptual approach. Based on the analysis of legal materials used in this study concluded that the decisions of the Constitutional Court other than affirm the meaning of human rights as contained in the 1945 Constitution, the Constitutional Court through its decision also has shifted (expand) some of the meaning of human rights contained in the 1945 Constitution. Abstrak Kewenangan pengujian undang-undang oleh Mahkamah Konstitusi menempati posisi strategis dalam penguatan negara hukum di Indonesia, yang salah satu cirinya adalah adanya pengakuan dan perlindungan terhadap hak asasi manusia. MK dalam menjalankan kewenangan pengujian undang-undang telah menafsirkan berbagai ketentuan UUD 1945 mengenai hak asasi manusia, yang beberapa penafsiran tersebut menguatkan makna sebagaimana secara gramatikal terbaca dalam UUD 1945 namun terdapat pula putusan yang memaknai secara berbeda dibandingkan makna gramatikal UUD 1945. Penelitian ini dilakukan untuk mengetahui makna ketentuan dalam UUD 1945 yang mengatur mengenai hak asasi manusia, serta untuk mengetahui apakah melalui putusan MK terjadi pergeseran bahkan perubahan makna hak asasi manusia dimaksud. Metode penelitian ini berbentuk penelitian yuridis normatif. Pendekatan yang digunakan meliputi pendekatan teoretis (theoretical approach) , dan pendekatan konseptual ( conceptual approach ). Berdasarkan analisis bahan hukum yang digunakan dalam penelitian ini disimpulkan bahwa putusan-putusan MK selain menegaskan makna hak asasi manusia sebagaimana terdapat dalam UUD 1945, MK melalui putusannya juga telah menggeser (memperluas) sebagian makna hak asasi manusia yang tercantum di dalam UUD 1945.
The function of the Indonesian Constitutional Court as the guardian of the constitution is mainly... more The function of the Indonesian Constitutional Court as the guardian of the constitution is mainly conducted through the judicial review authority. Since 2003 to April 2021, the Constitutional Court has received and decided 1392 petitions over judicial review. In its dictums, the Constitutional Court often declares conditionally constitutional or conditionally unconstitutional (conditional decision). Conditional decision is a decision of the Court that declare the reviewed norm conditionally constitutional or unconstitutional. The norm is constitutional if interpreted pursuant to the Court interpretation, or the norm is unconstitutional if interpreted in certain ways. This research is aimed to investigate the criteria of judicial review decisions which declares conditionally constitutional and conditionally unconstitutional in accordance with the characteristics of norms of the law reviewed. The analysis was limited to the Court decisions from 2003 to 2017. The research result indica...
Arena Hukum
In the relation of law and politic perspective, law is not a neutral entity. Law is a battlegroun... more In the relation of law and politic perspective, law is not a neutral entity. Law is a battleground domain for political interests and as instrument of group domination. It can be seen in the formation and implementation of the Halal Law. This research aims to analyze the role of Indonesian Ulama Council (MUI) in the formation and implementation of the Halal Product Guarantee Act. This research uses socio legal method. The research result shows that MUI dominates by hold up the formation and implementation of the Halal Law. This is done by dominating the legitimacy of identity as a religious organization and using a network of organizations and political actors so that the process of establishing rules and administering halal law by BPJPH is hampered. Delegitimacy and disturbance are also experienced through requests for judicial review of the Halal Certification Law to the Constitutional Court and lawsuits to the courts.
This article aims to analyse the relationship between state and religion (in this case, Islam) in... more This article aims to analyse the relationship between state and religion (in this case, Islam) in political and legal developments in Indonesia from colonial times to the present, and to determine the model of Indonesian secularity within the multiple secularities approach. The legal and political developments relating to the relationship between the state and Islam in Indonesia are understood to be the products of societal debate as well as instruments for solving particular societal problems, guided by certain guiding ideas1 that shape Indonesian secularity. The paper first describes Indonesia’s evolving socio-political conditions, noting in particular the emergence of two distinct groups: Islamic groups calling for Islam to be made the foundation of the Indonesian state and for Islamic law to be enforced for Muslims in Indonesia, and nationalist groups that support the idea of a secular nation-state based on Pancasila, a set of five founding principles. In the second part, the pa...
This article aims to analyse the relationship between state and religion (in this case, Islam) in... more This article aims to analyse the relationship between state and religion (in this case, Islam) in political and legal developments in Indonesia from colonial times to the present, and to determine the model of Indonesian secularity within the multiple secularities approach. The legal and political developments relating to the relationship between the state and Islam in Indonesia are understood to be the products of societal debate as well as instruments for solving particular societal problems, guided by certain guiding ideas1 that shape Indonesian secularity. The paper first describes Indonesia’s evolving socio-political conditions, noting in particular the emergence of two distinct groups: Islamic groups calling for Islam to be made the foundation of the Indonesian state and for Islamic law to be enforced for Muslims in Indonesia, and nationalist groups that support the idea of a secular nation-state based on Pancasila, a set of five founding principles. In the second part, the pa...
Asian Journal of Comparative Politics, 2021
This article analyzes the phenomenon of single candidates in Indonesia's 2020 local elections... more This article analyzes the phenomenon of single candidates in Indonesia's 2020 local elections, where the number increased compared to the previous local elections. Although initially local elections with single candidates were not intended, by a ruling of the Constitutional Court a local election must still be carried out even if there is only a single pair of candidates. The number of single candidates has increased, as it becomes an easier and cheaper way to ensure victory, particularly for incumbents. This condition is strengthened by the culture of political parties that tend to provide support to candidates who possess a greater chance of winning in order to take control of the government and form political cartels. Although presently it has not been indicated that single candidates are a form of oligarchic rule and political dynasty, it may become an easy way to obtain political power.
Asian Journal of Comparative Politics, 2021
This article analyzes the phenomenon of single candidates in Indonesia's 2020 local elections... more This article analyzes the phenomenon of single candidates in Indonesia's 2020 local elections, where the number increased compared to the previous local elections. Although initially local elections with single candidates were not intended, by a ruling of the Constitutional Court a local election must still be carried out even if there is only a single pair of candidates. The number of single candidates has increased, as it becomes an easier and cheaper way to ensure victory, particularly for incumbents. This condition is strengthened by the culture of political parties that tend to provide support to candidates who possess a greater chance of winning in order to take control of the government and form political cartels. Although presently it has not been indicated that single candidates are a form of oligarchic rule and political dynasty, it may become an easy way to obtain political power.
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Papers by MUCHAMAD ALI SAFA'AT