Contempt of Parliament and Constitutional Rights

1998 ◽  
Vol 42 (2) ◽  
pp. 237-237
Keyword(s):  
Judicial Review ◽  
Freedom Of Expression ◽  
Constitutional Rights ◽  
Select Committee ◽  
Public Servants ◽  
Legal Representation ◽  
Members Of Parliament ◽  
The Supreme Court ◽  
Fair Hearing ◽  
Constitutional Right

The appellant, Mutasa, was a former Speaker of the then House of Assembly. He had addressed a seminar of senior public servants where he had voiced the opinion that the calibre of MPs was so low as to make Parliament meaningless and that they were uninformed, lacked intelligence and demeaned the institution of Parliament. The respondent, the Speaker of Parliament, ruled that the appellant's words constituted a breach of parliamentary privilege and a select committee of members of Parliament was appointed to investigate the matter. The committee took evidence from witnesses in the absence of Mutasa. He was questioned but was not allowed legal representation and the select committee also refused his request to recall, for further examination, witnesses who had testified. As a result of the committee's recommendations, Mutasa was found guilty of contempt of Parliament and severely reprimanded by the Speaker. Mutasa sought a judicial review of the proceedings of the select committee arguing that the finding of contempt should be quashed on the grounds that the committee's procedure had violated his right to a fair hearing (contrary to section 18(2) of the Constitution) and that his utterances outside Parliament were protected by his constitutional right to freedom of expression. The Speaker then issued a certificate under section 6(1) of the Privileges, Immunities and Powers of Parliament Act which the presiding judge deemed to be conclusive of the matter and accordingly stayed the proceedings. Mutasa appealed to the Supreme Court.

scholarly journals Menyoal Kebebasan Beragama dan Penodaan Agama Di Indonesia

2015 ◽  
Vol 3 (2) ◽  
pp. 195-212
Author(s):  
Yayan Sopyan
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Religious Beliefs ◽  
Freedom Of Expression ◽  
Freedom Of Speech ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Reform Era ◽  
The Republic ◽  
The Right

Abstract: Questioning the Religious Freedom and blasphemy in Indonesia. The presence of the Constitutional Court in the reform era is the strengthening of the foundations of constitutionalism in the Constitution of the Republic of Indonesia Year 1945. The Court in this case a role to enforce and the protector of the citizen's constitutional rights and the protector of the human rights. Including in this case, the right to religion and religious practices and teachings of their respective religions, in accordance with the constitutional mandate. However, on the other hand there is the discourse of freedom of expression and freedom of speech includes freedom to broadcast religious beliefs and understanding of the "deviant" and against the "mainstream" religious beliefs and understanding in general, as in the case of Ahmadiyah. The Court in this case is required to provide the best attitude when faced judicial review in this case still required in addition to guarding the constitution in order to run properly.   Abstrak: Menyoal Kebebasan Beragama dan Penodaan Agama di Indonesia. Kehadiran lembaga Mahkamah Konstitusi di era reformasi merupakan upaya penguatan terhadap dasar-dasar konstitusionalisme pada Undang-Undang Dasar Negara Republik Indonesia Tahun 1945. MK dalam hal ini berperan menegakkan dan melindungi hak-hak konstitusional warga negara (the protector of the citizen’s constitutional rights) dan pelindung HAM (the protector of the human rights). Termasuk dalam hal ini, hak untuk memeluk agama dan menjalankan ibadah serta ajaran agamanya masing-masing, sesuai dengan amanat konstitusi. Namun, disisi lain ada wacana kebebasan berekspresi dan kebebasan berpendapat termasuk didalamnya kebebasan untuk menyiarkan keyakinan dan pemahaman keagamaan yang “menyimpang” dan bertentangan dengan “mainstream” keyakinan dan pemahaman keagamaan pada umumnya, seperti dalam kasus Ahmadiyah. MK dalam hal ini dituntut untuk mampu memberikan sikap terbaik saat dihadapkan judicial review dalam kasus ini selain tetap dituntut untuk mengawal konstitusi agar dapat berjalan sebagaimana mestinya. DOI: 10.15408/jch.v2i2.2314

scholarly journals Penegakan Putusan Mahkamah Konstitusi Nomor 13/PUU-XV/2017 Mengenai Hak Mendapatkan Pekerjaan dan Hak Membentuk Keluarga

2019 ◽  
Vol 15 (4) ◽  
pp. 858
Author(s):  
Muhammad Reza Winata ◽  
Intan Permata Putri
Keyword(s):  
Qualitative Research ◽  
Judicial Review ◽  
Industrial Relations ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Freedom Of Contract ◽  
Legal Power ◽  
The Supreme Court ◽  
The Republic ◽  
The Right

Jaminan konstitusi terkait hak konstitusional untuk mendapatkan pekerjaan dalam Pasal 28D ayat (2) UUD NRI 1945 dan hak konstitusional untuk membentuk keluarga dalam Pasal 28B ayat (1) UUD 1945 telah dibatasi dengan adanya ketentuan Pasal 153 ayat (1) huruf f Undang-Undang No 13 Tahun 2003 tentang Ketenagakerjaan. Keberadaan perjanjian kerja menghalangi hak pekerja untuk menikah dalam satu institusi karena pekerja harus mengalami pemutusan hubungan kerja untuk dapat melaksanakan haknya membentuk keluarga yang sebenarnya dijamin dalam konstitusi dan peraturan perundang- undangan. Pengujian Pasal 153 ayat (1) huruf f UU No 13 Tahun 2003 dalam Putusan Mahkamah Konstitusi Nomor 13/PUU-XV/2017 telah menyatakan frasa "kecuali telah diatur dalam perjanjian kerja, peraturan Perusahaan, atau perjanjian kerja bersama" bertentangan dengan UUD 1945. Artikel ini hendak menjawab kekuatan mengikat dan akibat hukum putusan, sekaligus Penegakan putusan dengan memetakan penyelesaian terkait peraturan perundang-undangan dan perjanjian kerja yang tidak tidak sesuai dengan putusan dan bertentangan dengan prinsip kebebasan berkontrak. Penelitian ini didasarkan pada penelitian kualitatif, dimana sumber analisis yakni Putusan MK terkait permasalahan yang diangkat, peraturan perundang-undangan, buku dan artikel ilmiah. Artikel ini hendak memetakan penyelesaian yang sesuai terkait kepada perjanjian kerja yang tidak menjamin hak pekerja yang dijamin dalam konstitusi, serta bertentangan dengan prinsip kebebasan berkontrak. yakni: pertama, penyelarasan peraturan perundang undangan di bawah Undang-undang judicial review di Mahkamah Agung, kedua, penyelesaian perselisihan hak melalui Pengadilan Hubungan Industrian yang akan menguji penegakan putusan dalam perjanjian kerja, peraturan perusahaan, atau perjanjian kerja bersama.The constitutional guarantee regarding constitutional rights to obtain employment in Article 28 D paragraph (2) of the 1945 Constitution of the Republic of Indonesia and the constitutional rights to form a family in Article 28 B paragraph (1) of the 1945 Constitution has been limited by the provisions of Article 153 paragraph (1) letter f Law No. 13 of 2003 concerning Labor. The existence of a work agreement prevents the right of workers to get married in one institution because workers must experience termination of employment to be able to exercise their rights to form a family which is actually guaranteed in the constitution and legislation. Testing Article 153 paragraph (1) letter f of Law No. 13 of 2003 in the Decision of the Constitutional Court Number 13/PUU-XV/2017 has stated the phrase "except as stipulated in work agreements, company regulations, or collective labor agreements" contrary to the 1945 Constitution. This article is about to answer the binding and consequent legal power of the decision, as well as Enforcement of decisions by mapping out solutions related to legislation and work agreements that are not incompatible with decisions and are contrary to the principle of freedom of contract. This research is based on qualitative research, where the source of analysis is the Constitutional Court Decision related to the issues raised, legislation, scientific books, and articles. This article intends to map appropriate solutions related to work agreements that do not guarantee workers’ rights guaranteed in the constitution, as well as contrary to the principle of freedom of contract. namely: first, alignment of legislation under the judicial review law in the Supreme Court, secondly, settlement of rights disputes through the Industrial Relations Court which will test enforcement of decisions in work agreements, company regulations, or collective labor agreements.

scholarly journals Modderklip Revisited: Can Courts Compel the State to Expropriate Property where the Eviction of Unlawful Occupiers is not Just and Equitable?

2018 ◽  
Vol 21 ◽  
pp. 1-21
Author(s):  
Jackie Dugard
Keyword(s):  
South Africa ◽  
Separation Of Powers ◽  
The State ◽  
Court Case ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Western Cape ◽  
The Supreme Court ◽  
Constitutional Right ◽  
The Republic

This article examines whether, to give effect to the section 26 constitutional right to adequate housing, courts can (or should) compel the state to expropriate property in instances when it is not just and equitable to evict unlawful occupiers from privately-owned land (unfeasible eviction). This question was first raised in the Modderklip case, where both the Supreme Court of Appeal (Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2004 3 All SA 169 (SCA)) and Constitutional Court (President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC)). dodged the question, opting instead to award constitutional damages to the property owner for the long-term occupation of its property by unlawful occupiers. It is clear from cases such as Ekurhuleni Municipality v Dada 2009 4 SA 463 (SCA), that, mindful of separation of powers concerns, courts have until very recently been unwilling to order the state to expropriate property in such circumstances. At the same time, it is increasingly evident that the state has failed to fulfil its constitutional obligations to provide alternative accommodation for poor communities. In this context, this article argues that there is a growing need for the judiciary to consider, as part of its role to craft effective remedies for constitutional rights violations, the issue of judicial expropriation. It does so, first, through an analysis of the relevant jurisprudence on evictions sought by private landowners and, second, through an in-depth engagement of the recent Western Cape High Court case, Fischer v Persons Listed on Annexure X to the Notice of Motion and those Persons whose Identity are Unknown to the Applicant and who are Unlawfully Occupying or Attempting to Occupy Erf 150 (Remaining Extent) Phillipi, Cape Division, Province of the Western Cape; Stock v Persons Unlawfully Occupying Erven 145, 152, 156, 418, 3107, Phillipi & Portion 0 Farm 597, Cape Rd; Copper Moon Trading 203 (Pty) Ltd v Persons whose Identities are to the Applicant Unknown and who are Unlawfully Occupying Remainder Erf 149, Phillipi, Cape Town 2018 2 SA 228 (WCC).    

scholarly journals FREEDOM OF EXPRESSION AND CAMPUS PROTESTS

Obiter ◽  
2017 ◽  
Vol 38 (3) ◽  
Author(s):  
George Barrie
Keyword(s):  
Freedom Of Expression ◽  
Cape Town ◽  
Constitutional Rights ◽  
Western Cape ◽  
Freedom Of Association ◽  
The Supreme Court ◽  
Primary Focus ◽  
The Right ◽  
University Of Cape Town ◽  
The University

Hotz v University of Cape Town (2016 (4) All SA 723 (SCA)) presented the Supreme Court of Appeal (SCA) with an ideal set of circumstances to incisively deal with the precise meaning and parameters of section 16(1) of the Constitution, which mandates that everyone has the right to freedom of expression and section 16(2), which states that section 16(1) does not extend to advocacy of hatred that is based on race or ethnicity and that constitutes incitement to cause harm. It also afforded the SCA an opportunity to express itself on ancillary constitutional rights such as section 17 (the right to assemble and demonstrate); section 15 (the right of freedom of opinion); section 18 (the right to freedom of association) and section 19(1) (the right to campaign for a political cause).  The main focus of the judgment of the SCA (per Wallis JA), however, was on freedom of expression (s 16(1)) which will be the primary focus of this note.Vehement protests on the campus of the University of Cape Town (UCT) constituted the background to this matter being heard by the SCA as an appeal against a final interdict of the Western Cape High Court. The final interdict excluding appellants from the campus of UCT was granted by Allie J who granted leave to appeal. The appeal specifically concerned the granting of the final interdict and the factual allegations made by the university regarding the nature of the protests which led to the granting of the final interdict.

A Democratic Defense of Constitutional Balancing

2010 ◽  
Vol 4 (1) ◽  
pp. 79-106 ◽  
Author(s):  
Stephen Gardbaum
Keyword(s):  
Judicial Review ◽  
General Structure ◽  
Prima Facie ◽  
Constitutional Rights ◽  
Constitutional Democracy ◽  
First Order ◽  
Constitutional Right ◽  
Normative Justification ◽  
Inherent Part

We all live in the age of constitutional balancing. Abstracting away differences of nuance and doctrinal detail, balancing is a common feature of the structure of rights analysis across contemporary constitutional systems. Indeed, abstracting just a little further still, balancing is an inherent part of the near-universal general conception of a constitutional right as an important prima facie claim that nonetheless can in principle be limited or overridden by certain non-constitutional rights premised on conflicting public policy objectives.It is not surprising, then, that a significant literature about balancing has developed at both domestic and comparative levels. What is surprising is that so little of this literature has attempted to present the normative case for constitutional balancing or the general structure of rights analysis of which it is an inherent part. Rather, the existing scholarship has mostly focused on five other tasks: (1) describing and comparing first-order practices of balancing; (2) providing second-order conceptual analyses; (3) explaining balancing's rise to dominance; (4) advancing critiques of balancing; and (5) rebutting these critiques.In this article, I attempt to present one particular normative justification of constitutional balancing; namely a democratic justification. I argue that balancing appropriately bolsters the role of majoritarian decision-making about rights within a system of constitutional democracy. It thereby renders entrenched rights enforced by the power of constitutional or judicial review more consistent with certain enduring democratic concerns. I also explain the implications of this justification for how courts should exercise their powers of review.

The Confessions Rule and the Charter

2010 ◽  
Vol 54 (3) ◽  
pp. 517-546 ◽  
Author(s):  
Hamish Stewart
Keyword(s):  
The Other ◽  
Supreme Court Of Canada ◽  
Constitutional Rights ◽  
Constitutional Principle ◽  
Trial Judges ◽  
Right To Silence ◽  
The Supreme Court ◽  
Constitutional Right ◽  
The One ◽  
The Right

Abstract The confessions rule—the requirement that the Crown prove the voluntariness of the accused’s statements to persons in authority—is a well-established rule of criminal evidence and is closely connected with the constitutional principle against self-incrimination that it structures. The confessions rule is thus a natural candidate for recognition as a principle of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms. However, there are two distinct routes by which the confessions rule might be constitutionalized. Under the “rule of evidence” approach, the confessions rule would be recognized as an aspect of the accused’s constitutional right to a fair trial. Under the “rights violation” approach, the conduct of the state in obtaining an involuntary statement would be treated as a violation of the accused’s constitutional rights. In R. v. Singh, despite having previously adopted the “rule of evidence” approach, the Supreme Court of Canada applied the “rights violation” approach and linked the confessions rule very closely to the constitutional right to silence. In so doing, the Court conflated the distinct protections offered by the right to silence on the one hand and the confessions rule on the other, particularly when Singh is read in light of other recent cases that appear to weaken the confessions rule. Fortunately, the Court’s recent decisions concerning the confessions rule may also be read as instances of appellate deference to trial judges’ factual findings on voir dires. Thus, they leave room for the recognition that neither the right to silence nor the confessions rule is reducible to the other, and that each has a distinct role to play: the right to silence protects the accused’s decision to speak at all, while the confessions rule concerns the accused’s motivations for speaking as he or she did.

scholarly journals JUDICIAL REVIEW SEBAGAI SARANA PERLINDUNGAN HAK-HAK ASASI WARGA NEGARA

2015 ◽  
Vol 11 (22) ◽  
pp. 170-181
Author(s):  
Safi’ Safi’
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Recent Time ◽  
Public Acceptance ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Community Groups ◽  
The Supreme Court ◽  
The Right ◽  
Laws And Regulations

Observing the development of public acceptance of the substance of the laws that were generated in recent time, the right of judicial review of an option that can not be avoided for the 'correct' errors that might occur in a legal product to guarantee the protection of constitutional rights of citizens. The tendency in this direction can be seen from the desire of some community groups to apply for judicial review and claim that they are legal products containing controversial value both to the Supreme Court nor the Constitutional Court. If prior to the amendment of the 1945 Constitution, laws and regulations that can be petitioned for review of material just under the Act against the Constitution, but after the 1945 amendment, the legislation level as the Act was that the Act and also Perpu material can be petitioned for review to the Constitutional Court.

7. Challenging decisions: appeals, administrative and judicial review

2021 ◽  
pp. 247-276
Author(s):  
Gina Clayton ◽  
Georgina Firth ◽  
Caroline Sawyer ◽  
Rowena Moffatt
Keyword(s):  
Judicial Review ◽  
Asylum Seekers ◽  
Legal Representation ◽  
Current Structure ◽  
Administrative Review ◽  
Fair Hearing ◽  
Immigration And Asylum

This chapter discusses the development of the current structure of the appeals bodies—the Appeal Tribunal and the Special Immigration Appeals Commission (SIAC)—and their procedure. It sets out the limited rights of appeal following the implementation of the Immigration Act 2014. It has sections on administrative review and judicial review. The chapter also considers whether there is a right to a fair hearing in immigration and asylum decisions. It concludes with a section on immigrants and asylum seekers’ access to legal representation, including funding.

scholarly journals KEWENANGAN MENGUJI KONSTITUSIONALITAS PERATURAN DAERAH TERHADAP UUD 1945

2015 ◽  
Vol 4 (4) ◽  
Author(s):  
Indah Permatasari
Keyword(s):  
Judicial Review ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Legal Certainty ◽  
Legal Research ◽  
Conceptual Approach ◽  
Local Regulation ◽  
Constitutional Review ◽  
Analysis Techniques ◽  
The Supreme Court

The local government is given authority by the constitution to establish local regulations. Problems are arise when there are local regulation that not compatible with the constitution. The next question that arises is who is authorized to examine local regulations that not compatible with the constitution. In contrary with those considerations, the substantial problems are formulated into two, regulations about examine local regulations with the constitution and  who is authorized to examine local regulations with the constitution. This legal research is normative legal research. This research used the statute approach and conceptual approach. Legal materials analysis techniques that are used in this research are description and interpretation techniques. There is no regulation about examine local regulations with the constitution. The way that can be done to examine local regulations with the constitution is lodge a judicial review to the Supreme Court and than lodge a constitutional review to the Constitutional Court. The other way to do is through a constitutional complaint, but this mechanism is not owned by the Constitutional Court. The establishment of examine local regulations with the constitution is important to provide legal certainty and the protection of constitutional rights to the citizens.

Prohibition of Stay of Proceedings in Criminal Litigations under ACJA/EFCC Acts and Speedy Dispensation of Justice: Olisah Metuh V FRN (2017) 5–7 MJSC 83

2020 ◽  
Vol 12 (3-4) ◽  
pp. 315-334
Author(s):  
Ibrahim Imam ◽  
Yusuf O. Abdulhamid
Keyword(s):  
Criminal Justice ◽  
Supreme Court ◽  
The State ◽  
Financial Crime ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
The Supreme Court ◽  
Fair Hearing ◽  
Constitutional Right ◽  
Speedy Trial

Abstract Considering the reality that criminal proceedings suffer unwarranted delay due to spatial of antics habitually utilized by litigants to delay proceedings, this paper explores the judgment of the Supreme Court in Methu v FRN to determine whether, or not, exclusion of stay of proceedings is constitutional. The authors employed mainly doctrinal method, thus library based. It is established that antics and technicalities often employ by litigants/counsel in corruption cases constitute impediment to speedy trial of indicted individual in courts. The judgment under review validates the constitutionality of proscription of stay of proceedings and remedied the unwholesome attitude of litigants/counsel to deliberately delay/frustrate criminal proceedings. Similarly, the risk of denying the state of its synergy to fight corruption vide delay in securing expeditious hearing and trial of cases is extinguished and constitutional right of the accused, the victim of crime and the state to fair hearing within reasonable time reaffirmed. It is concluded that the innovative insertion of prohibition on stay of proceedings in the Administration of Criminal Justice Act (ACJA) and Economic and Financial Crime Commission (EFCC) Act mechanisms put in place to check delay in prosecuting crime of corruption, and therefore, does not infringe on the fundamental right of an accused person to fair hearing.

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