RATIO DECIDENDI PUTUSAN MAHKAMAH KONSTITUSI NOMOR 91/PUU-XVIII/2020 YANG BERSIFAT INKONSTITUSIONAL BERSYARAT PERSPEKTIF SIYASAH DUSTURIYAH

Bagus Santoso, NIM.: 18103070004 (2022) RATIO DECIDENDI PUTUSAN MAHKAMAH KONSTITUSI NOMOR 91/PUU-XVIII/2020 YANG BERSIFAT INKONSTITUSIONAL BERSYARAT PERSPEKTIF SIYASAH DUSTURIYAH. Skripsi thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

The decision of the Constitutional Court Number 91/PUU-XVIII/2020 states that the establishment of the Undang-Undang Cipta Kerja is contrary to the UUD 1945 and is conditionally unconstitutional as long as it is not interpreted as not being corrected within 2 (two) years since the decision was pronounced. The decision raises problems related to ambiguity and legal uncertainty because it is conditionally unconstitutional which still applies to the Undang-Undang Cipta Kerja until it is amended for 2 (two) years. Whereas the Undang-Undang Cipta Kerja in the quo Decision is expressly contradictory to the UUD 1945 so that technically the Undang-Undang Cipta Kerja must also be explicitly canceled and order for improvement cannot be used as an excuse to make a law that violates the constitution remains in effect. This thesis aims to identify the ratio decidendi of the Constitutional Court Decision Number 91/PUU-XVIII/2020 which is conditionally unconstitutional using the siyasah dusturiyah perspective. This research used juridical-normative legal research methods (library law research) with the nature of the research being descriptive analysis. The research used the legal approach and conceptual approach. The primary legal source for this research is Constitutional Court Decision Number 91/PUU-XVIII/2020. The theoretical framework utilized involves the theories of siyasah dusturiyah, legal objectives, and progressive law. The results of the study indicated that the purpose of using conditional unconstitutional clauses in the ratio decidendi of the quo decision is intended so that a norm being tested (either through a material test or formal test) can be implemented (in the sense of remaining constitutional) as long as its implementation is by the interpretation given by the Constitutional Court and cannot be implemented (permanently unconstitutional) if the conditions and are not met. So it is very natural that during the period of improvement of the formation of the Undang-Undang Cipta Kerja it is still valid for up to 2 (two) years. This is also in line with the siyasah dusturiyah theory which states that policies must provide benefits to create comfort for the community and eliminate harm. The considerations in the quo decision choose a middle way by balancing the requirements for the formation of a law that must be met as a formal requirement in order to fulfill the elements of legal certainty, expediency and justice. Besides that, it also considers the strategic objectives of establishment the quo Law.

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