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PROBLEMATIKA PENGUJIAN KONSTITUSIONALITAS UNDANG-UNDANG RATIFIKASI PERJANJIAN INTERNASIONAL
The process of ratification in the form of a law is a mechanism used to bind the state to an international agreement. However, laws ratifying international treaties instead give rise to legal dualism in the ratification process and create tension between national law and international law. To address this issue, this study examines laws ratifying international treaties by analyzing Indonesia’s need to engage in global cooperation through mechanisms that are consistent with constitutional principles and the principle of pacta sunt servanda. This research employs a normative legal research method with a conceptual approach, a case approach, and a statutory approach. The primary data sources used are the 1945 Constitution of the Republic of Indonesia, relevant statutory regulations, and related decisions of the Constitutional Court. The objective of this research is to examine the problems surrounding the judicial review of laws ratifying international treaties against the 1945 Constitution and to analyze laws ratifying international treaties from the perspective of siyāsah al-tasyrī‘iyyah. The results of the study indicate the existence of factors that pose challenges in reviewing the constitutionality of laws ratifying international treaties, namely the ratification process through two mechanisms laws and presidential regulations which creates legal uncertainty. In addition, the scope of ratification laws that bind both internally and externally may also give rise to new problems in judicial review. Furthermore, from the perspective of siyāsah al-tasyrī‘iyyah, the ratification method carried out by the President through a presidential regulation may affect maslahah ammah due to the absence of public representation in its formation. A presidential regulation is a product of unilateral executive authority, whereas laws with broad impact should be established through ijtihad jama‘i in order to obtain social and sharia legitimacy. Based on these conclusions, the solutions proposed by the author are a single-track ratification process, in which the mechanism is carried out solely through laws with the authority of the DPR, so as to avoid legal uncertainty. The second solution is the use of abstract review by the Constitutional Court in the process of ratification into law, so that potential problems between national law and international law can be minimized during judicial review.
FAKULTAS SYARIAH DAN HUKUM, UIN SUNAN KALIJAGA YOGYAKARTA
PROBLEMATIKA PENGUJIAN KONSTITUSIONALITAS UNDANG-UNDANG RATIFIKASI PERJANJIAN INTERNASIONAL (Text)
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