Towards the Establishment of an International Constitutional Court

ICL Journal ◽  
2016 ◽  
Vol 10 (4) ◽  
Author(s):  
Laith K Nasrawin
Keyword(s):  
Human Rights ◽  
Constitutional Court ◽  
The People ◽  
Selection Of ◽  
The Way

AbstractThis article comprehensively examines the 1999 recommendation of the Tunisian government to create an International Constitutional Court that is designed to enhance the principles of democracy and human rights and to strengthen the constitutional doctrine which states that the people are the source of authority in a given country. This proposal, which was strongly advocated by former Tunisian President Mohamed Moncef Marzouki during his term in office, aims to underscore the importance of establishing an international judicial entity and analysing its bylaws with respect to its terms and conditions, formation, jurisdiction and selection of judges. The article traces the trajectory of the movement, from the proposal stage to the latest developments in formally establishing the international judicial entity. Finally, the article identifies various possible difficulties and challenges that are likely to stand in the way of implementing the proposal.

scholarly journals Dismissal of KPK Employees from Legal Positivism and Alternative Solutions

2021 ◽  
pp. 175
Author(s):  
Dominikus Dalu Sogen ◽  
Dewa Ayu Putri Asvini ◽  
Detty Kristiana Widayat
Keyword(s):  
Human Rights ◽  
Legal Theory ◽  
Legal Positivism ◽  
Constitutional Court ◽  
Human Right ◽  
The Public ◽  
Positive Law ◽  
The People ◽  
National Human ◽  
The Law

Studying the philosophy of law means studying various schools of law. Amongst the variety of legal theories, there are adherents of legal positivism or the positive legal theory postulated by John Austin (a philosopher whose thoughts on law are outlined in a work entitled The Province of Jurisprudence Determined 1832). Are Austin's thoughts still relevant for the practice of law inthe modern era, considering that law is made for the public interest? Is it appropriate for the law to be made by authorities (superior) to bind subordinates (inferior), whereas the people are only in a position to obey the law? In a functioning democracy public participation is important in decision-making by the elected legislators. Presumably, law is not made arbitrarily or unilaterally, but it is supposed to take into account the interest of the public or the interest of the groups it is designed to address. A prominent example currently in the public spotlight isthe dismissal of 57 Corruption Eradication Commission (KPK) employees due to their stated ineligibility following their failure to pass the National Insight Test Assessment. For this matter, a judicial review (JR) has been requested from the Constitutional Court and the Supreme Court who in the meantime have published their decisions. In addition, there have been recommendations from the National Human Rights Commission (Komnas HAM) and the Indonesian Ombudsman regarding the occurrence of human rights violations and maladministration in the transfer of KPK employees to ASN. Where JR's decision by the two judicial institutions is different from what is recommended by Human Right Commission and the Indonesian Ombudsman. Here it can be seen that there are differences in the application of the law with the positive law that applies and is detrimental to the rights of KPK employees.

scholarly journals The Constitutionality of State Authority Over Water Resources Management Based on Human Rights Principles

2021 ◽  
Vol 5 (1) ◽  
Author(s):  
Ricko Anas Extrada ◽  
Kamarusdiana Kamarusdiana
Keyword(s):  
Human Rights ◽  
Water Resources ◽  
Private Sector ◽  
Research Methods ◽  
The State ◽  
Constitutional Court ◽  
Conceptual Approach ◽  
Resources Management ◽  
Library Research ◽  
The People

This study aims to analyze the dichotomy of the implementation of privatization of water resources by the private sector that occurs in Indonesia and the responsibility for managing water resources by the state in terms of human rights principles. In accordance with the mandate of the constitution which is affirmed in Article 33 paragraph (3) that "Earth and water and natural resources contained therein are controlled by the state and used for the greatest prosperity of the people." This research uses normative legal research methods, while the approach used in this study is a statutory approach and library research methods as well as a conceptual approach that will be harmonized with statutory provisions. The results of this study indicate that the state has the responsibility in managing water resources in accordance with the mandate of the constitution to guarantee, protect and fulfill human rights to water. Water management by the private sector (water privatization) which is monopolistic, exclusive and materialistic is not in accordance with the spirit of the constitution and the basis of the Indonesian state. Moreover, based on the decision of the Constitutional Court which annulled the Water Resources Law, it obliges that the management of water resources be carried out by the state in order to realize social welfare.

scholarly journals The Workload of the European Court of Human Rights: A Back-Door to Becoming a Constitutional Court of Europe

2019 ◽  
Vol 2 (1) ◽  
pp. 50-66
Author(s):  
Damjan Grozdanovski
Keyword(s):  
Human Rights ◽  
Constitutional Court ◽  
European Court ◽  
Protection Of Human Rights ◽  
Back Door ◽  
Significant Change ◽  
The Way

The workload of the European Court of Human Rights has been one of its main concerns, and having in mind that justice delayed is justice denied – it has been justifiably so. In order to deal with the backlog of pending cases before the Court the Convention mechanism has been subject to change on several occasions, with the first significant change occurring in 2010. It is undisputed that these changes affected the way in which the Court deals with cases, but have they also affected the very nature of the Court? The aim of this article is to provide an overview of these changes, and an analysis of the effects that these changes had on the nature of the Court and on the protection of human rights in Europe.

scholarly journals JURIDICAL OVERVIEW OF EXISTENCE COMMUNITY CUSTOMARY FORESTS

2021 ◽  
Author(s):  
M Chairul Basrun Umanailo
Keyword(s):  
Human Rights ◽  
Indigenous Peoples ◽  
Forest Products ◽  
Customary Law ◽  
Constitutional Court ◽  
Legal Documents ◽  
The People ◽  
Forestry Management ◽  
Research Theme ◽  
Ownership Of Land

In principle, forest and forestry management is a management process for all components of the ecosystem, including humans. Utilization of forests to facilitate economic growth has eliminated the interests of customary forest communities, the rights of indigenous peoples have clearly been protected as human rights, as stated in Law Number 39 of 1999 concerning the basic provisions of human rights. The people of Buru District, Grandeng Village, have an area of forest area for other uses of around 600 hectares which can be used for the benefit of local communities, but there are often problems between the Transmigration Community and Indigenous People who have unresolved ownership of land areas under customary law, as well as the involvement of the local government Buru Regency in providing solutions to problem solving, the method used is descriptive qualitative interview instruments and a review of legal documents related to the research theme. The results that can be conveyed are the utilization of Customary forest products and their management by the community in Lolongguba sub-district, often in coordination with Hinolong Baman or the Head of Soa, which means that legally the implementation of the Constitutional Court Decision, No.35 / PUU?X / 2012 concerning the Existence of Community Customary Forests has been implemented in the community, however the institutionality of the Waeapo Plains Indigenous Peoples has not been maximized, both in the implementation of customary law norms, as a result of factors, human resources, economy, social and customary institutions themselves. Based on legal research, it is necessary to formulate a legal umbrella both Government Regulations and Regional Regulations relating to ownership of forests and forest products.

scholarly journals Organizing Democracy through General Elections in Indonesia: The Challenge of Law Enforcement and State Stability

2019 ◽  
Vol 5 (2) ◽  
pp. 333
Author(s):  
Ridwan Arifin ◽  
Saktiani Nurul Hidayat
Keyword(s):  
Law Enforcement ◽  
Vice President ◽  
Legal Framework ◽  
Transition To Democracy ◽  
Constitutional Court ◽  
Leadership Succession ◽  
Simultaneous Interpretation ◽  
The People ◽  
General Elections ◽  
Selection Of

One of the developments in Indonesia's political democracy is marked by the existence of legal framework that state sovereignty belongs to the people and is carried out in accordance with the 1945 Constitution. On the basis of the formulation of leadership succession in the executive and legislative branches it is mandated by Article 22 E paragraph (2). However, in practice the constitutional arrangement in Law Number 42 of 2008 concerning the General Election of the President and Vice President shows that it is inconsistent with statements in the constitution. As stipulated in Article 3 paragraph (5) states that the election of the President and Vice President is held after the election of the DPR, DPD and DPRD. At the end of the Constitutional Court through Decree No. 14/PUU-XI/2013 states that the selection of models is unconstitutional. Based on this assessment the constitutionality of the norm selection method is based on the simultaneous interpretation of the constitution both from the initial intentions and historical interpretations. The simultaneous constitutional electoral plan was called born as an effort to shift the direction of the transition to democracy in a strengthening system so that democratic consolidation of direct democratic practices tends to be transactional, corrupt, manipulative, high cost and to preserve power can be minimized in the practice of constitutional democratic dimensions to understand and sovereign.

scholarly journals The Role Played by the South African Human Rights Commission's Economic and Social Rights Reports in Good Governance in South Africa

2017 ◽  
Vol 9 (2) ◽  
pp. 176
Author(s):  
D Horsten
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Good Governance ◽  
Social Rights ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The South ◽  
Economic Rights ◽  
The People

The preamble of the Constitution of South Africa, 1996 (the Constitution) contains the commitment to, amongst other things, establish a society based on democratic values, social justice and fundamental human rights, lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law and improve the quality of life of all citizens and free the potential of each person.  One of the methods used to achieve these objectives is the inclusion of enforceable socio-economic rights in the Chapter 2 Bill of Rights. Despite numerous debates surrounding the issue of enforceability of socioeconomic rights, it has become evident that these rights are indeed enforceable.  Not only does section 7(2) of the Constitution place the state under an obligation to respect, protect, promote and fulfil all rights in the Bill of Rights, including socio-economic rights, but the Constitutional Court has in various decisions passed judgment on issues relating to socio-economic rights, underpinning the fact that these rights are indeed enforceable. The fact that socio-economic rights have been included in the Bill of Rights and are enforceable is, however, not sufficient to achieve the aims set out in the preamble.  In order for these rights to be of any value to the people they seek to protect, they need to be implemented. One of the ways in which the implementation of these rights is monitored is by means of the South African Human Rights Commission's annual Economic and Social Rights Reports.  The aim of this contribution is to assess these reports and to establish the degree to which they contribute to good governance in South Africa with reference to, inter alia, the constitutional mandate of the South African Human Rights Commission, the reporting procedure and the evaluation of reports.

Marcosian Atrocities: Historical Revisionism and the Legal Constraints on Forgetting

2018 ◽  
Vol 19 (2) ◽  
pp. 140-190
Author(s):  
Raphael Lorenzo A. Pangalangan ◽  
Gemmo Bautista Fernandez ◽  
Ruby Rosselle L. Tugade
Keyword(s):  
Human Rights ◽  
The Philippines ◽  
Constitutional Court ◽  
Historical Revisionism ◽  
The People ◽  
Conflicting Demands ◽  
European Court ◽  
German Constitutional Court ◽  
Legal Constraints ◽  
The Right

The Philippines resoundingly cried ‘never again’ to the horrors of the Marcos dictatorship through the People Power revolution of 1986. Thirty years later, the Filipino people have come to realise that success is indeed fleeting. On 18 November 2016, the remains of Philippine dictator Ferdinand E. Marcos were buried in the Libingan ng mga Bayani—the Heroes’ Cemetery. While the Philippine Supreme Court insists that the hero’s burial conferred to the author of the nation’s darkest chapter is a political question, from established doctrines here and abroad, the authors seek to derive the political answer. This article will look at the legitimacy of memory laws within the Philippine Constitutional framework. Finding guidance from the Auschiwtz lie case of the German Constitutional Court, the article seeks to combat historical revisionism and prohibit the Marcosian lie. Our research begins by looking at the resurgence of authoritarianism as seen through the populist presidency of Rodrigo Roa Duterte. We will then proceed to address the threshold issue of state-sanctioned narratives. Recognising that the duty to establish the truth involves the power to determine the narrative, the authors will reconcile the conflicting demands of the freedom of thought and the right to the truth. We will then proceed by utilising the fact-opinion distinction to demonstrate how the Marcosian lie may be the valid subject of regulation. The last phase of the research looks into the approaches adopted by the United Nations (un) Human Rights Committee and the European Court of Human Rights in dealing with negationism and historical revisionism.

scholarly journals Quo Vadis Indonesian Labor Act: How Far the Protection for Labors?

2021 ◽  
Vol 2 (4) ◽  
pp. 591-602
Author(s):  
Kukuh Pambudi
Keyword(s):  
Human Rights ◽  
Research Method ◽  
Legal Protection ◽  
Constitutional Court ◽  
The Core ◽  
The People ◽  
Protection Of Human Rights ◽  
Quo Vadis ◽  
Almost All ◽  
A Company

Basic human rights for Indonesian workers are set out in constitution both in the 1945 Constitution, Law Number 39 Year 1999 regarding Human Rights, as well as in Law Number 13 of 2003 on Employment. Although there are regulations that regulate human rights for the people labor, but in fact many violations occur. Proven with the existence of Article 64 of the Manpower Act regulating Outsourcing, where in its development with the outsourcing system there are many shifts in the application of outsourcing system. Outsourcing is initially only imposed on that type of work not directly related to the production process of that activity relating outside the core business of a company, will but in reality almost all types of jobs are subject to outsourcing This research will describe in relation to the protection of human rights for the workforce especially for outsoutcing in labor Indonesia. The research method used is normative Juridical with the approach used is the Legislation Approach. The results obtained that with the Decision of the Constitutional Court Number 27 / PUU-IX / 2011 concerning Request for Testing of Law Number 13 of 2003 on Employment of the 1945 Constitution, is one form of legal protection for outsourced workers. Because in the verdict states that outsourcing only is permitted for the types of work listed in Article 59 of the Manpower Law. 

scholarly journals Yuridis Putusan Mahkamah Konstitusi Nomor 35/PUU-X/2012 Tentang Keberadaan Hutan Adat Masyarakat

2021 ◽  
Vol 3 (3) ◽  
pp. 823-828
Author(s):  
Syaiful Rachman ◽  
Mansyur Nawawi ◽  
M Chairul Basrun Umanailo
Keyword(s):  
Human Rights ◽  
Indigenous Peoples ◽  
Forest Products ◽  
Customary Law ◽  
Constitutional Court ◽  
The People ◽  
Indigenous Institutions ◽  
Forestry Management ◽  
Research Theme ◽  
Ownership Of Land

In principle, forest and forestry management is a management process for all components of the ecosystem, including humans. Utilization of forests to facilitate economic growth has eliminated the interests of customary forest communities, the rights of indigenous peoples have been protected as human rights, as stated in Law Number 39 of 1999 concerning the basic provisions of human rights. The people of Buru District, Grandeng Village, have an area of forest area for other uses of around 600 hectares which can be used for the benefit of local communities, but there are often problems between the Transmigration Community and Indigenous People who have unresolved ownership of land areas based on customary law, as well as the involvement of the local government Buru Regency in providing solutions to problem-solving, the method used is descriptive qualitative with interview instruments and a review of legal documents related to the research theme. The results that can be conveyed are the utilization of Customary forest products and their management by the community in Lolongguba sub-district, often in coordination with Hinolong Baman or the Head of Soa, which means that legally the implementation of the Constitutional Court Decision, No.35 / PUU-X / 2012 concerning the Existence of Community Customary Forests has been implemented in the community, however, the institutionality of the Waeapo Plains Indigenous Peoples has not been maximized, both in the implementation of customary law norms, as a result of factors, human resources, economy, social and Indigenous institutions themselves. Based on legal research, it is necessary to formulate a legal umbrella both government regulations and regional regulations regarding ownership of forests and forest products.

scholarly journals Politik Hukum Putusan MK Nomor 36/PUU-X/2012 dalam Upaya Mengembalikan Kedaulatan Negara dan Perlindungan HAM

2016 ◽  
Vol 13 (2) ◽  
pp. 299
Author(s):  
Habib Shulton Asnawi
Keyword(s):  
Human Rights ◽  
Oil And Gas ◽  
State Institution ◽  
Constitutional Court ◽  
Human Rights Law ◽  
Foreign Companies ◽  
The People ◽  
Systemic Impact ◽  
Protection Of Human Rights ◽  
The Republic

The background of this paper departs from concern over the fragility of the value of Indonesia's sovereignty which has an impact on the violations of the rights of Indonesian citizens (human rights). Law No. 22 of 2001 on Oil and Gas (Oil and Gas Law) has undermined the sovereignty of the state and the nation's economic sovereignty. Oil and Gas Law poses systemic impact on people's lives and could harm the country's finances. This is because oil and gas law opened liberalization of oil and gas management which is highly dominated by foreign entity since oil and gas world in Indonesia is dominated by foreign companies up to 89 percent. Therefore, in an effort to restore the sovereignty of the Republic of Indonesia in the field of oil and gas, the Constitutional Court as a State institution has taken progressive step in its decision No. 36 / PUU-X / 2012 on the dissolution of BP Migas. The legal policy of the Court decision constitute a wise choice and is a progressive step in the field of law, especially the protection of human rights of the people of Indonesia.

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