Mahkamah Konstitusi dan HAM : Masalah Pidana Mati

Abstract

Mahkamah Konstitusi (MK) has a fundamental role in addressing human rights issue in Indonesia. As the guardian of the constitution, MK should protect human rights provision under Chapter XA of the UUD 1945. In order to complete its function, MK has an authority to invalidate unconstitutional legislation by judicial review mechanism. A legislation can be declared unconstitutional if it violates human rights provision of the UUD 1945. The problematic of judicial review of human rights in Indonesia is the vague relationship between Art. 281.1 and Art. 281.2 of the UUD 1945. The author suggests that Art. 281.2 the UUD 1945 can not be utilized as an ultimate tool to derogate Art. 28I.l of the UUD 1945. But in the capital punishment constitutionality case the author thinks that it should be a matter of legal policy of the government as a legislator which can not be intervened by MK