THE RECOVERY OF CONSTITUTIONAL LOSSES BY THE CONSTITUTIONAL COURT

The Constitutional Court's decision does not necessarily lead to the restoration of constitutional rights. This will be interesting to be examined because the state, in this case represented by the Constitutional Court, can only recover the constitutional losses suffered by citizens if it issues a decision. However, there are also citizens who still feel that their losses have not been recovered by the issuance of this decision. Then how can the Constitutional Court recover such constitutional losses by still referring to the constitution and laws and regulations? This research method uses normative research methods. The results of this study indicate that the Constitutional Court decisions do not always lead to the restoration of the constitutional rights of the injured citizens. Then what are the other ways to recover the constitutional losses still experienced by citizens. This constitutional loss really needs to be restored because its existence is guaranteed in the constitution and all branches of state power are obliged to respect it by not committing violations even to the point of loss.

In carrying out its functions, the Constitutional Court has four powers and an obligation. The four powers owned by the Constitutional Court are examining laws against the 1945 Constitution of the Republic of Indonesia, resolving disputes over the authority of state institutions whose authority is granted by the 1945 Constitution of the Republic of Indonesia, deciding to dissolve political parties and decide general election results. Its obligation is deciding the opinion of the House of Representatives that the President and / or Vice President have committed a violation of the law, or have acted disgracefully, or do not meet the requirements as President and / or Vice President as referred to in the 1945 Constitution of the Republic of Indonesia (Ashshiddiqie, 2006). The constitution is the overall basic rule which binds the administrators of state power (organs state) in administering the state and its relationship with the people both as citizens and individuals. In this case, the state and the people are obliged to comply with the rules has been listed in the constitution as a basic rule. Basic rules this is the fundamental law in the formation of regulations other laws (Fauzan, 2013 If the application for legal testing is granted by the constitutional court then it will lead a citizen to the restoration of constitutional rights that are violated due to the enactment of a Law. The consequences of the law that will occur related to the granting of the application for testing of the law are: (i) The material of the Law whether the paragraph, article, chapter or the whole law that is contrary to the NRI Constitution of 1945 is void and not binding, (ii) -constitutional rights that have been harmed due to the enactment of an Act, (iii) The inclusion of this matter in the State News of the Republic of Indonesia. Constitutional rights are rights guaranteed by the constitution. The guarantee can be in the form of a statement expressly or implied in the constitution. Because it is included in the constitution, all branches of state power are obliged to respect it. Therefore, recognition and respect for constitutional rights as part of the constitution at the same time means a limitation on state power (Palguna, 2013). Based on the explanation above, when there is a violation of TlR: 2020 Vol 2 (2) Novan Mahendra Pratama 129 constitutional rights, it is necessary to restore the applicant for constitutional rights as citizens, because these rights have been guaranteed in the constitution. If a citizen does not get restoration of his constitutional rights, it tends to have legal consequences and other consequences, because his constitutional rights as a citizen do not get legal certainty.

The Urgency to Restore The Constitutional Rights of Aggrieved Citizens
Constitutional Court decisions on Judicial Review always cite the five criteria c. Losses must be specific and actual or potential; d. The existence of a causal relationship (causal verband) between the loss and the law being tested; The formulation given by the constitutional court regarding constitutional impairment has become a doctrine to measure whether the parties submitting an application to the constitutional court have the legal standing to act as petitioners. 9 The five criteria for constitutional impairment are interpretations made by the constitutional court of Article 51 of the constitutional court law. In the a quo article, the constitutional court interprets the criteria for constitutional impairment that apply to applicants with various qualifications, whether as individual Indonesian citizens (hereinafter referred to as Indonesian citizens), customary law communities, public or private legal entities and state institutions.
The formulation of the conditions for constitutional impairment which has been interpreted by the constitutional court has undergone several adjustments.
One of them is the addition of the phrase "authority" 10 which at the beginning of the formulation of the conditions for constitutional impairment at the constitutional court only emphasized the element of "rights" of the parties who could submit themselves as petitioners to the constitutional court. The addition of the element of TlR: 2020 Vol 2 (2) Novan Mahendra Pratama 130 "authority" in the measure of constitutional impairment is to comply with the provisions in Article 51 of the Law on the Constitutional Court. The addition of the element of "authority" in the formulation of constitutional losses to accommodate the possibilities of state institutions that can act as petitioners in cases of disputes over the authority of state institutions whose authority is granted by the 1945 Constitution of the Republic of Indonesia. In the context of regulating "state institutions", the constitution does not mention " rights "from state institutions.
What is regulated in the constitution regarding state institutions is the authority that must be exercised (Bisaryadi, 2017). Therefore, the element of constitutional impairment that is assessed if the applicant is a state institution is not about "rights", but there is a loss in constitutional "authority" that is owned.
Another thing that has experienced adjustments is the formulation of example, the right to a fair trial process (right to fair trail) as part of the law enforcement process (rule of law) and the right to legal assistance (right to counsel).
Regarding the requirements for constitutional rights and / or authority, it is an interpretation that has been made of Article 51 of the Law on the Constitutional Court. This matter must be considered from two points of view, the constitutional court's point of view and the applicant's point of view. From the applicant's point of view, the applicant must be able to clearly describe in the contents of his petition and at the same time be able to prove that there is a loss as a result of the running of an applicable law. What needs to be noted is that the petition must be compiled systematically without repeating it, at the same time accompanied by convincing evidence. The petitioner also needs articles in the constitution to serve as a reference regarding the existence of constitutional rights and / or authorities that have been impaired.. Apart from the above, the formulation of the second requirement in the doctrine of constitutional loss regarding the applicant's assumption that there will be a loss of constitutional rights and / or authority over the passage of a legal norm is also a requirement that is normative and overlaps with the subsequent requirements in the doctrine of constitutional impairment. The form of loss must be specific and actual or at least potential to occur. There must be a causal relationship TlR: 2020 Vol 2 (2) Novan Mahendra Pratama 133 between losses and the norms in law. Therefore, the requirements for the elements in the doctrine of constitutional impairment which consist of two groups, namely "the existence of constitutional rights and / or authority" and "the existence of a loss" need special attention and also need to be considered by the Constitutional Court to be refined so that in the future the doctrine of constitutional impairment not too loose.
In terms of improving the doctrine of constitutional impairment, the Constitutional Court must also be able to think ahead to perfect this doctrine. There are two sides that must be considered by the Constitutional Court to improve doctrine. On the one hand, tightening the doctrine of constitutional impairment will allow the Constitutional Court not to move freely. On the other hand, making the doctrine of constitutional impairment too loose will also have the effect that the constitutional court is considered inconsistent.
The constitutional court should have improved the current doctrine of constitutional impairment which is still being applied. Because the doctrine of constitutional impairment at the current constitutional court is the five conditions above which apply to all applicants (in this case citizens, indigenous peoples, legal entities and state institutions) at each request.
In the future, the Constitutional Court must make a measure of constitutional loss that depends on the qualifications of the applicant (citizens, indigenous peoples, legal entities and state institutions). Measures of the respective losses must be made so that when their constitutional rights or authorities are violated and / or impaired, the Constitutional Court already has a measure of the constitutional loss and has a way out to restore the impaired constitutional rights as soon as possible.

Constitutional Court Decisions as Remedy for Constitutional Losses
Constitutional losses suffered and / or experienced by citizens due to the enactment of legal norms have resulted in those citizens suffering constitutional losses. Whereas constitutional rights are rights that have been guaranteed in the constitution. It is appropriate that all branches of state power are obliged to protect them so that all citizens get these rights without anyone feeling violated and even suffering constitutional losses.
If citizens suffer constitutional losses and there is no effort to restore these TlR: 2020 Vol 2 (2) Novan Mahendra Pratama 134 rights as they should, it will create legal uncertainty. The 1945 Constitution of the Republic of Indonesia is the basic law that guarantees the constitutional rights of all citizens so that they are not violated or harmed. For citizens who feel their constitutional rights have been violated or harmed, they can file a judicial review to the Constitutional Court.
The Constitutional Court is one of the state institutions that has the authorization for attribution by the 1945 Constitution of the Republic of Indonesia to conduct a constitutional review (judicial review) of a norm that binds all citizens.
In testing the constitutionality, the Constitutional Court will test the Act against the 1945 Constitution of the Republic of Indonesia, as one of its powers. In this examination, the Constitutional Court will give a decision on the norms being tested for its constitutionality.
If the Constitutional Court is of the opinion that there is no constitutional loss experienced by the petitioner, then the Court will not cancel the implementation of a binding norm. However, on the other hand, if the Constitutional Court believes that there is a constitutional loss that has occurred both factually and potentially, the Constitutional Court will cancel the operation of such norms so that citizens who (1) If the Constitutional Court is of the opinion that the petition is grounded, the ruling states that the petition is granted; (2) In the term of the petition is granted as referred to in paragraph 2, the Constitutional Court shall clearly state the content of paragraphs, articles and / or parts of the law which are contrary to the 1945 Constitution of the Republic of Indonesia; (3) In the term of the formation of the law does not meet the provisions for the formation of laws based on the 1945 Constitution of the Republic of Indonesia, the ruling states that the petition is granted; (4) This article has been declared no longer binding and has no binding legal If the majority of the problems that arise are regarding the Judgment of the Law, then the hope of the petitioners is that their constitutional rights can be restored. Even though we know that in the formulation of the norms of Article 24C paragraph (1) of the 1945 Constitution of the Republic of Indonesia, it states "... to test the law against the Constitution ..." (bold print by the author). This diction will only provide two legal certainties, namely that it can remain valid or invalid. Not to the restoration of constitutional rights as in the authority of constitutional complaint (Bisariyadi, 2016).
Since its inception until mid-2010, the Constitutional Court has received quite a number of requests for Judicial Review which constitute a constitutional complaint. However, as we know, the authority of the Constitutional Court is determined limitatively in the 1945 Constitution of the Republic of Indonesia without mentioning the authority for constitutional complaint. This resulted in many petitioners being declared "unacceptable" (niet onvankelijk verklaard) on the grounds that the Constitutional Court was not authorized to adjudicate the petition because there was no authority to judge it (Zoelva, 2010).
In practice, these cases use the Judicial Review as an entry point for their TlR: 2020 Vol 2 (2) Novan Mahendra Pratama 137 examination. Cases containing elements of constitutional complaint still came to the Constitutional Court. This situation occurs because there is no other mechanism or path that can be taken by justice seekers or citizens who have been violated or even have their constitutional rights harmed. Finally, the petitioners used the entrance to the judicial review so that their problems could be tried by the Constitutional Court.
The Constitutional Court's decision in resolving such cases sometimes also expands the interpretation of the Constitutional Court Decision which is not only limited to stating that the Law contradicts the 1945 Constitution of the Republic of Indonesia, but also the Constitutional Court carries out new formulations to resolve cases by way of its decision by declaring that it is rejected on a note ( conditionally constitutional) and granted with a note conditionally unconstitutional (Zoelva, 2010 The Constitutional Court can make dynamic and broad interpretations of constitutional rights and legal standing. This view can be accepted that the interpretation of the constitution does not only adhere to the formal legality of the original intent aspects of the constitutional provisions (backward looking), but also views that relate to the practical needs and political benefits of the present and future (Zoelva, 2010).
One of the powers of the Constitutional Court is the review of the Law against the 1945 Constitution of the Republic of Indonesia, whose decision is erga omnes in nature. This authority is not a constitutional complaint authority that can provide restoration of individual rights to those concerned or those with an interest in the constitutional loss suffered. The Constitutional Court decision does not necessarily lead to the restoration of constitutional rights. Therefore, even though the Constitutional Court had decided it, there were also petitioners who still considered the losses they suffered had not been recovered by the Court. It is time for the constitutional complaint to be added to the Constitutional Court so that such matters can be accommodated.

Conclusion
After understanding the description, discussion and analysis of this essay, the conclusions are as follows: 1.
The criteria for constitutional impairment can be used for all qualifications of the applicant, but the criteria for constitutional impairment are not fully applicable to each applicant's qualifications. This happens because the constitutional loss doctrine used by the Constitutional Court needs to be reformulated based on the respective qualifications of the applicant, not as it is today (the formulation of the constitutional loss doctrine for all qualifications of the applicant). This is done so that the measure of the constitutional loss and the form of recovery can be right on target to the applicant in obtaining his recovery.

2.
The Constitutional Court's decision as a remedy for constitutional losses does not necessarily lead to the restoration of constitutional rights. Therefore, even though the Constitutional Court had decided, there were also petitioners who still considered the losses suffered by the Constitutional Court not yet recovered. This happens because one of the powers that the Constitutional Court has is the review of the Law against the 1945 Constitution of the Republic of Indonesia, where this authority is different from the authority of constitutional complaint which provides restoration of constitutional rights to those concerned only.

1.
Improvements to the doctrine of constitutional loss in the future need to be added with instruments of compensation or compensation for the losses suffered.

2.
Adding the authority to constitutional complaint to the Constitutional Court so that the Constitutional Court can focus more on restoring constitutional loss to those with interests.