The Constitutional Court

2018 ◽  
Author(s):  
Simon Butt ◽  
Tim Lindsey
Keyword(s):  
Constitutional Court ◽  
Judicial Reform ◽  
Future Viability ◽  
The Government ◽  
National Legislature

Indonesia’s Constitutional Court, established in 2003, is often called a model of judicial reform for other courts in Indonesia and throughout parts of Asia. It reviews statutes against the Constitution, hears disputes about elections and between state organs, and decides presidential impeachment motions brought by the national legislature. This chapter shows that this court started strongly, performing its functions professionally and commanding respect from the government and citizens, despite having no enforcement powers. It even managed to push the formal boundaries of its jurisdiction and, in our view, began to ‘make law’, thereby usurping a legislative function. However, recent corruption scandals and poorly reasoned decisions have undermined its credibility and threaten its future viability.

DEKADENSI PEMILIHAN HAKIM AGUNG OLEH DPR RI

2020 ◽  
Vol 14 (1) ◽  
pp. 73-104
Author(s):  
Rustam Magun Pikahulan
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
House Of Representatives ◽  
Good Governance ◽  
Constitutional Court ◽  
Due Diligence ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Institutional Status ◽  
The Government

Abstract: The Plato's conception of the rule of law states that good governance is based on good law. The organization also spreads to the world of Supreme Court justices, the election caused a decadence to the institutional status of the House of Representatives as a people's representative in the government whose implementation was not in line with the decision of the Constitutional Court. Based on the decision of the Constitutional Court No.27/PUU-XI/2013 explains that the House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only approve or disapprove candidates for Supreme Court Justices that have been submitted by the Judicial Commission. In addition, the proportion of proposed Supreme Court Justices from the judicial commission to the House of Representatives (DPR) has changed, whereas previously the Judicial Commission had to propose 3 (three) of each vacancy for the Justices, now it is only one of each vacant for Supreme Court Judges. by the Supreme Court. The House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only "approve" or "disagree" the Supreme Judge candidates nominated by the Judicial Commission.

Emergency powers of the authorities of the constituent units of the federation (states) in Russia, the USA and Brazil amid the spread of a new coronavirus infection

2021 ◽  
Vol 30 (3) ◽  
pp. 86-107
Author(s):  
Alexander Merkulenko
Keyword(s):  
Russian Federation ◽  
The United States ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Emergency Powers ◽  
Lack Of Control ◽  
The Usa ◽  
Coronavirus Infection ◽  
The Russian Federation ◽  
The Government

Due to the new coronavirus pandemic, high alert regimes were introduced across the Russian Federation in spring 2020. These emergency regimes were established exclusively by the state bodies of the Russian Federation’s constituent units – federal authorities did not introduce their own emergency regimes. This decentralized strategy of fighting the pandemic was also introduced by the USA and Brazil. Their states, without the sanction of the federal government, and in the case of Brazil, ignoring its bans, set emergency restrictions similar to those in Russia. The legal regulation of emergency regimes existed before 2020, when constituent units of the federation (states) actively used their emergency powers. However, the regimes introduced during the fight against the pandemic were slightly different to previous ones. The restrictions on rights and freedoms within these regimes were so severe that not only their proportionality was questioned, but there were also doubts as to whether the regional level of the government had the authority to establish such strict restrictions. In addition, the pandemic exposed old problems and revealed new shortcomings in the legal regulation of emergency regimes: lack of control over the realization of the emergency regime by legislative (representative) authorities, and gaps in legislative regulation – notably in the establishment of possible restrictions and of a mechanism for scrutinizing their proportionality. All this raised questions about the proportionality of the established restrictions. The Constitutional Court of the Russian Federation resolved a very insignificant amount of the problems. While the United States and Brazil faced similar issues, the practice of scrutinizing implemented restrictions in these countries was more common. This article takes domestic and foreign experiences into account, while examining certain aspects of the establishment and the operation of regional emergency regimes.

scholarly journals Dinamika Konsepsi Penguasaan Negara Atas Sumber Daya Alam

2016 ◽  
Vol 12 (2) ◽  
pp. 401
Author(s):  
Ahmad Redi
Keyword(s):  
Natural Resources ◽  
House Of Representatives ◽  
Constitutional Court ◽  
State Control ◽  
Control Rights ◽  
Control Concept ◽  
Control Right ◽  
The Government ◽  
Draft Bill ◽  
The Guardian

Discourse concerning state control concept on natural resources in Article 33 clause (3) of the 1945 Constitution is very dynamic. Such dynamic can be seen on      a variety of conceptions of state control rights on natural resources formulated in various acts in natural resources area. Lack of single concept on ‘state control right’ will impact to unfavorable situation where natural resources shall escape from conception of state control right and into control not by the state. The Constitutional Court as the Guardian and Interpreter of the Constitution has a significant role to ascertain that an act in natural resources area really adopt the principle of state control on natural resources in Indonesia. This article analyzes on dynamics of conception of state control on natural resources in various acts and the role of the Constitutional Court in guarding and interpreting acts in natural resources in order to be in accordance with Article 33 clause (3) of the 1945 Constitution. From the result of analysis a conclusion is achieved that there are many different concepts    of state control on natural resources in various acts in natural resources area. The Constitutional Court indeed has made interpretation on state control right. In order to make the conception stronger it is necessary to have an act in natural resources area as instruction of Article 33 clause (5) of the 1945 Constitution that further provisions of Article 33 shall be regulated by an act. Moreover, DPR (The House of Representatives) and the Government have to make certain or definite the concept of state control right in every draft bill of natural resources area so that liberalism and capitalism stream will not erode the principle of state control right.

scholarly journals Conflict of Civil Society Movement and Government in the Process of Developing of The Job Creation Bill

PROPAGANDA ◽  
2021 ◽  
Vol 1 (1) ◽  
pp. 12-22
Author(s):  
M. Masad Masrur
Keyword(s):  
Conflict Resolution ◽  
Civil Society ◽  
Interest Groups ◽  
Judicial Review ◽  
Job Creation ◽  
Violent Conflict ◽  
Constitutional Court ◽  
Community Groups ◽  
Public Facilities ◽  
The Government

The discussion room for the Work Creation Bill is officially located at the DPR RI Building. The discussion, which involved various interest groups, was deemed insufficient to accommodate the “rejecting” aspirations expressed by various community groups. Several community groups who are members of various civil society movements, held demonstrations outside the DPR RI Building as a venue for discussion of the Job Creation Bill. Demonstrations that also took place in these areas have caused damage to public facilities. According to Habermas's opinion, this condition is the result of structural domination, where the ruling group directs various forms of policy with instrumental communication that will not create understanding. In agreement with Gramsci, in this case, there is a political hegemony between one group against another. The government, which has an interest in immediately completing the deliberation of the Job Creation Bill, through the power of political domination, seeks to exercise hegemony against the civil society movement, causing violent conflict. Conflict resolution in the discussion of the Work Creation Bill is structurally carried out by using the state law approach in accordance with the prevailing laws and regulations. In accordance with the mandate of the constitution, all matters relating to regulations, a judicial review can be carried out at the Constitutional Court.

scholarly journals The Rule of Law in the Middle East and the Islamic World

2001 ◽  
Vol 18 (4) ◽  
pp. 167-171
Author(s):  
Mohammad Fadel
Keyword(s):  
Human Rights ◽  
Middle East ◽  
Rule Of Law ◽  
Average Length ◽  
The United States ◽  
Constitutional Court ◽  
Critical Perspective ◽  
The Rule Of Law ◽  
Varying Length ◽  
The Government

This work grew out of a series of lectures that were delivered over atwo-year period between 1996 and 1998 at the Centre of Islamic andMiddle Eastern Law (CIMEL) at the School of Oriental and AfricanStudies (SOAS), University of London, on the genera] subject of the rule oflaw in the Middle East and Islamic countries. Subsequently, materials wereadded dealing particularly with issues relating to human rights law. Thecontributors to this work are a combination of legal academics, human rights activists, lawyers and judges, who hale from various countries in theArab world, Iran, the United States, Great Britain and Germany.There are a total of fourteen separate chapters, of varying length andquality. The book is not lengthy - including notes and authors’ biographies,it is 180 pages long. The average length of each chapter is between ten andfifteen pages. Despite the diversity of countries surveyed, all the essays areconcerned with generic questions regarding the rule of law, whether in atheoretical sense, viz., whether the notion that legitimate governmentalaction is limited to those acts that are deemed lawful by a pre-existing setor rules, or in a practical sense, viz., assuming that the formal legal regimeof a given state recognizes the rule of law in a theoretical sense, whetherthe coercive apparatus of the state in fact recognizes legal limitations onits conduct.Perhaps the most interesting (it is certainly the most lengthy, at 35 pages),and most important, essay in this work is the very fiit one, authored byAdel Omar Sherif, an Egyptian judge, wherein the author provides a digestof the landmark decisions of the Egyptian Supreme Constitutional Court.While the work can be criticized for taking on the appearance of a meresurvey of decisions, without taking a critical perspective to the Court’sprecedents, it is nonetheless a very valuable contribution for those lawyersand scholars who cannot read Arabic but nonetheless wish to gain insightinto Egypt’s legal culture. The modest task of relating the decisions ofEgypt’s Supreme Constitutional Court is especially important given thecliches regarding the absence of effective judicial institutions in the Arabworld. Sherifs contribution effectively dispels that myth. His article revealsthe Egyptian Supreme Constitutional Court to be a vibrant institution thattakes its constitutional duties seriously, and discharges those duties withintegrity, and when it finds that the government has acted unlawfully, it willstrike down the offensive legislation, or rule against the government ...

Romania heads for clash with EU over legal sovereignty

2021 ◽  
Keyword(s):  
Rule Of Law ◽  
Judicial Independence ◽  
Constitutional Court ◽  
Content Type ◽  
The Past ◽  
Court Of Justice ◽  
Recent Developments ◽  
The Government ◽  
The Eu

Significance After accentuated rule-of-law erosion during 2017-19, the new government encouraged hopes that such violations would become a thing of the past. However, last month, the government sacked the ombudsman, while the Constitutional Court declared void a judgement of the EU Court of Justice (CJEU) defending judicial independence. Impacts Recent developments erode hopes that last month’s positive CVM report will lead to Romania’s Schengen zone accession later this year. Failure to replace the ombudsman will not affect the coalition parties electorally, given the politicisation of rule-of-law issues. Subnational courts will be left confused whether to apply the Constitutional Court or the CJEU ruling to legal disciplinary cases.

The Concentrated and Hybrid Models of Judicial Review

2021 ◽  
pp. 27-38
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Complex System ◽  
Latin America ◽  
Hybrid Model ◽  
Judicial Review ◽  
Civil Law ◽  
Hybrid Models ◽  
Judicial System ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
The Government

This chapter examines the two models of judicial review that exist in the civil law countries: the Concentrated Model and the Hybrid Model. The Concentrated Model of judicial review is built around the idea that what judges do when they enforce constitutions and Bills of Rights is inherently political and nonjudicial. For this reason, a separate Constitutional Court is created outside the ordinary judicial system, and is the only entity with the power of judicial review. The power of judicial review of Constitutional Courts is conceived as being a power to make the law and not simply to interpret it. Hence, a Constitutional Court in a civil law country is, essentially, a fourth branch of the government. Meanwhile, many countries, especially in Latin America, have developed distinct Hybrid Models of judicial review. The country of Brazil can be considered as the archetypal Hybrid Model. Brazil’s Hybrid Model of judicial review consists of a very complex system full of institutional mechanisms that are meant to enforce the Constitution. The Brazilian system combines features from both the Concentrated and the Diffuse Models hence the term Hybrid Model.

scholarly journals Constitutionality of the Colombia-France Bilateral Investment Treaty

2020 ◽  
Vol 114 (3) ◽  
pp. 471-478
Author(s):  
Rafael Tamayo-Álvarez
Keyword(s):  
International Investment ◽  
Constitutional Court ◽  
Investment Treaty ◽  
Adverse Impacts ◽  
International Investment Agreements ◽  
The Government ◽  
Benefits And Costs ◽  
Investment Agreements ◽  
Practical Implications

In a judgment issued on June 6, 2019 (Judgment), the Colombian Constitutional Court (Court) examined the constitutionality of the Agreement for the Reciprocal Promotion and Protection of Investments between Colombia and France (Agreement). The Court upheld the constitutionality of the Agreement on the condition that the government adopt a joint interpretative statement with France to clarify some of its provisions and prevent interpretations contrary to the Colombian constitutional order. In doing so, the Court articulated a standard of review that takes into account the benefits and costs of international investment agreements (IIAs), the application of which entailed an insightful examination of the Agreement in light of the decisions of investment tribunals. The judgment raises significant issues of public international law, including the practical implications of conditioning ratification of the Agreement on adoption of a joint interpretative statement and the role of such statements in the interpretation of IIAs. Furthermore, the judgment makes important contributions to the ongoing process of reform of the investment treaty regime and the strategies adopted by states to counter the adverse impacts of IIAs on regulatory autonomy.

scholarly journals The Settlement of Boundary Disputes Through Testing of Legislation in Indonesia

2018 ◽  
Vol 54 ◽  
pp. 01003
Author(s):  
Suparto ◽  
Rahdiansyah
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Constitutional Court ◽  
Regional Autonomy ◽  
Boundary Disputes ◽  
Legal Principle ◽  
The Supreme Court ◽  
Long Time ◽  
The Government ◽  
Settlement Of Disputes

Boundary dispute is a new phenomenon that occurred in the era of regional autonomy followed by the expansion of the region. One of them occurred between Kepulauan Riau and Jambi Provinces related to Berhala Island ownership. Settlement of disputes between these two provinces took quite a long time and also caused tensions between two provinces. Actually, the government through the Ministry of Home Affairs has issued a regulation to solve the boundary problem of this area namely the Minister of Home Affairs Regulation No.1 in 2006 and No. 76 in 2012 on Guidelines for Confirmation of the Boundaries, however, is still less effective because although it has been done in such a way the party who feels aggrieved still take another way that is by testing the legislation to the Supreme Court or Mahkamah Konstitusional (Constitutional Court). An example is the boundary dispute between Kepulauan Riau and Jambi Province which was resolved through the examination of legislation to the Supreme Court and the Constitutional Court. In the case, there were 3 decisions, namely Supreme Court Decision No.49P/HUM/2011, Decision of the Constitutional Court No. 32/PUU-X/2012 and the decision of the Constitutional Court No. 62/PUU-X/2012. Based on the research results obtained as follows 1). Implementation of the principle or legal principle of lex posterior derogat lex priori by the Supreme Court 2). The decision of the Supreme Court was taken into consideration in the decision of the Constitutional Court 3). The cause of the territorial boundary disputes between Kepulauan Riau Province and Jambi Province was the synchronization of 3 related laws namely Indonesian Law no. 31 in 2003, Law no. 25 in 2002 and Law no. 54 of 1999.

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