scholarly journals The principle of rule of law and independence of the judiciary in Myanmar

2021 ◽  
Vol 12 (1) ◽  
pp. 530-539
Author(s):  
Nge Nge Aung
Keyword(s):  
Rule Of Law ◽  
Comparative Method ◽  
Constitutional Court ◽  
Study Approach ◽  
Division Of Powers ◽  
Constitutional Tribunal ◽  
International Issues ◽  
Independence Results ◽  
Constitutional Adjudication

Aim. This research aims to discuss the importance of the principle of rule of law in protecting the judiciary’s role, especially the independence of constitutional adjudication and its functions. Methods. The study applies the case study approach and comparative method to investigate the constitutional court systems of some countries of the Association of Southeast Asian Nations  (ASEAN) and their independence. Results and conclusion. The resultsreveal a lack of the judiciary’s independence, even among the top branches that are trying to implement democracy in Myanmar. The judiciary is under the control of the executive and legislature branches as their members belong to political parties. Moreover, a constitutional court is established with the members who are elected and nominated by the legislature and executive. Sometimes there can be conflicts when constitutional law does not mention the division of powers among governmental organisations like Myanmar, which results from the impractical functions of the Constitutional Tribunal of Myanmar. Cognitive value. This research highlights possible ways to solve the constitutional issues among the three great branches. This initiative is in the interest of Myanmar citizens and citizens of all nations as these are international issues.

scholarly journals Connecting Reproductive Rights, Democracy, and the Rule of Law: Lessons from Poland in Times of COVID-19

2021 ◽  
Vol 22 (6) ◽  
pp. 1072-1097
Author(s):  
Atina Krajewska
Keyword(s):  
Rule Of Law ◽  
Reproductive Rights ◽  
The Rule Of Law ◽  
Abortion Law ◽  
Polish Society ◽  
History Of ◽  
Constitutional Tribunal ◽  
Litmus Test ◽  
The Relationship

AbstractThis article examines the relationship between reproductive rights, democracy, and the rule of law in transitional societies. As a case study, it examines the development of abortion law in Poland. The article makes three primary claims. First, it argues that the relationship between reproductive rights and the rule of law in Poland came clearly into view through the abortion judgment K 1/20, handed down by the Constitutional Tribunal in the middle of the COVID-19 pandemic. The judgment and the context in which it was issued and published are interpreted as reflections of deep-lying processes and problems in Polish society. Consequently, second, the article argues that analysis of the history of reproductive rights in recent decades in Poland reveals weak institutionalization of the rule of law. This is manifest in the ways in which different professional groups, especially doctors and lawyers, have addressed questions regarding abortion law. Therefore, third, the article argues that any assessment of the rule of law should take into account how powerful professional actors and organizations interact with the law. The Polish case study shows that reproductive rights should be seen as important parts of a “litmus test,” which we can use to examine the efficacy of democratic transitions and the quality of the democracies in which such transitions result.

Constitutional Court and Constitutional Review in Albania

ICL Journal ◽  
2013 ◽  
Vol 7 (2) ◽  
Author(s):  
Brunilda Bara ◽  
Jonad Bara
Keyword(s):  
Rule Of Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Review ◽  
The Rule Of Law ◽  
Historical Changes ◽  
Division Of Powers ◽  
Fundamental Rights And Freedoms ◽  
Legal Writers

AbstractThis article tends to give an insight on the historical and institutional develop­ment of the Constitutional Court of Albania, on the need of the society and the historical changes that led to its creation.It focuses especially on the role and competences of this Court on the protection of the rule of law, of the constitutional principles, on the balancing and division of powers, on the protection of the fundamental rights and freedoms of individuals. Its aim is to provide overall information on the functioning and standards it follows.It is based on the jurisprudence of this Court during the years and is enriched by its deci­sions on particular subjects and compares this Court to other similar ones in Eastern Euro­pean countries.The article is mainly directed to scholars and legal writers whose aim is to compare the organization and functioning of the Constitutional Court of Albania to other similar courts.

scholarly journals LEGAL PROTECTION OF THE PARTIES IN CREDIT AGREEMENT WITH FIDUCIARY GUARANTEE AFTER THE ISSUENCE OF CONSTITUTIONAL COURT DECISION No. 18/PUU-XVII/2019

2021 ◽  
Vol 6 (2) ◽  
pp. 65-77
Author(s):  
Celina Tri Siwi Kristiyanti
Keyword(s):  
Economic Value ◽  
Legal Protection ◽  
Court Decision ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Study Approach ◽  
Credit Agreement ◽  
Wheeled Vehicles ◽  
Legal Consequences

Fiduciary Guarantee Law is one of the material guarantees specifically regulated in Law No. 42 of 1999 on Fiduciary Guarantees that realizes the public's need for legal certainty but guaranteed objects still have economic value.  Article 15 of Law No. 42 of 1999 concerning Fiduciary Guarantees is felt burdensome to debtors, because creditors make forced efforts to take fiduciary guarantee objects in the form of 2-wheeled and 4-wheeled vehicles. The purpose of this study is (1) Finding and analyzing the basis of the Constitutional Court's Decision No. 18/PUU-XVII/2019 (2) Finding and explaining the legal consequences of the Constitutional Court Decision No. 18/PUU-XVII/2019 on legal protection for parties to credit agreements with fiduciary guarantees (3) Finding and explaining constraints on Financial Service Institutions (LJK) in the implementation of constitutional court decision No. 18/PUU-XVII/2019.  The research method used is juridical normative and empirical with a case study approach so that achievements are more comprehensive related to the principle of legal protection for parties in fiduciary guarantees. The result obtained that since the Decision of the Constitutional Court No. 18/PUU-XVII/2019, the executive confiscation cannot be done directly by creditors must go through a court decision. The executorial confiscation in Article 15 of Law Number 42 concerning Fiduciary Guarantee has been contrary to Article 1 (3), Article 27 (1), Article 28D (1), Article 28G (1) and Article 28H (4) of the Constitution of 1945. It takes good faith from the parties so that the implementation of the Constitutional Court Decision No. 18/PUU-XVII/2019 guarantees justice, legal certainty and provides legal protection. An agreement is required in accordance with the principle of freedom of proportionate contract, there is a balance of position between the debtor and the creditor.

Constitutional Justice in Credit Crises. The Hungarian Case

Südosteuropa ◽  
2018 ◽  
Vol 66 (1) ◽  
pp. 94-118
Author(s):  
Fruzsina Gárdos-Orosz
Keyword(s):  
Rule Of Law ◽  
Civil Law ◽  
Case Law ◽  
Critical Assessment ◽  
Basic Rule ◽  
Constitutional Court ◽  
Judicial Decisions ◽  
Hungarian Case ◽  
Constitutional Justice ◽  
Constitutional Adjudication

Abstract The economic crisis of 2008 brought about a rapid depreciation in the exchange rate of the Hungarian forint (HUF). Debtors in Hungary had borrowed money in foreign currencies—especially the Swiss franc—and now found themselves in a significantly deteriorating situation. The consequences of increased indebtedness reached all levels of society. On various grounds, consumers took out numerous civil law proceedings to challenge consumer loan agreements. Questions raised by these lawsuits were, several times, brought to Hungary’s Supreme Court, and were then taken to the legislature. The legislative acts and judicial decisions that ensued were subsequently reviewed by the Constitutional Court of Hungary. This article analyses the case law the Constitutional Court applied in this crisis situation, and brings out the lack of balancing capacity in the constitutional adjudication. Referring to the principles of basic Rule of Law, the author makes a critical assessment of the new constitutional ideas, measures and legal solutions that emerged.

scholarly journals Impact of the Rule of Law as a Fundamental Public Governance Principle on Administrative Law Interpretation in the Czech Republic

2019 ◽  
Vol 17 (2) ◽  
pp. 117-140
Author(s):  
Jana Janderová
Keyword(s):  
Czech Republic ◽  
Rule Of Law ◽  
Comparative Method ◽  
Administrative Law ◽  
Constitutional Court ◽  
General Tendency ◽  
Public Governance ◽  
The Czech Republic ◽  
The Rule Of Law ◽  
Administrative Courts

The rule of law is a fundamental principle and the cornerstone of Western democracies and their public governance. Its underlying value is the idea of constraint of governmental power. The rule of law principle acts as an interpretative concept in most contexts of the exercise of public powers in the EU and its Member States, with the courts exercising supervision over the activities of administrative bodies. However, the teleological argumentation through fundamental principles is not inherent to all Central and Eastern European judicial and administrative bodies, given the long tradition of formalistic approach in most of them. The article analyses whether the approach has changed during the past thirty years and to which level the principle of the rule of law is used for interpretation of administrative law provisions by courts in the Czech Republic. Since the case law of the Czech Constitutional Court and the Czech Supreme Administrative Court is based on the arguments of legality and proportionality as the key elements of the rule of law, their cases were analysed using a comparative method. The article identifies a general tendency in legally difficult cases to move from purely linguistic interpretation to interpretation through values, including the rule of law. Most of the analysed cases reveal that the formalistic interpretation was strongly criticised by both the Constitutional and the Supreme Administrative courts. However, slight differences in their perception of the principles of legality and proportionality were discerned, namely in the debate on the intensity of control exercised by administrative courts over factual and discretionary decisions by administrative authorities. Nevertheless, these differences produce beneficial effects, as both principles continue being developed thanks to the exchange of opinions between the courts. Further research could be conducted for similar countries in the region.

scholarly journals Keberlakuan Yurisprudensi pada Kewenangan Pengujian Undang-Undang dalam Putusan Mahkamah Konstitusi

2018 ◽  
Vol 15 (3) ◽  
pp. 642 ◽  
Author(s):  
Oly Viana Agustine
Keyword(s):  
Judicial Review ◽  
Civil Law ◽  
Constitutional Court ◽  
Analysis Method ◽  
Case Study Approach ◽  
Literature Study ◽  
Law System ◽  
Study Approach ◽  
The Republic

Keberlakuan yurisprudensi sebagai salah satu sumber hukum yang diakui di Indonesia selalu menarik untuk dilakukan penelitian. Indonesia yang terpengaruh dengan sistem hukum civil law pada dasarnya tidak mengikatkan diri pada yurisprudensi. Namun apabila ada putusan yang dianggap kontradiksi dengan putusan sebelumnya menjadi perdebatan mengenai bagaimana keberlakuan yurisprudensi yang telah ada. Mahkamah Konstitusi sebagai salah satu pelaku kekuasaan kehakiman memiliki kewenangan melakukan pengujian undang-undang terhadap Undang-Undang Dasar Negara Republik Indonesia tahun 1945. Dalam kewenangannya tersebut, terkadang Mahkamah Konstitusi dibenturkan dengan putusan terdahulu yang telah menjadi landmark namun tidak diikuti. Dengan kata lain, terdapat kontradiksi antara putusan yang terdahulu dengan putusan yang ada saat ini. Dalam penelitian ini akan dilihat bagaimana keberlakuan yurisprudensi pada pengujian undang-undang dalam putusan Mahkamah Konstitusi. Metode analisis yang digunakan adalah studi pustaka dengan menggunakan pendekatan studi kasus. Kesimpulan yang didapat dalam penelitian ini adalah bahwa yurisprudensi adalah sumber hukum yang dapat menjadi rujukan dalam memutus suatu perkara pengujian undang-undang namun tidak mengikat hakim untuk menyimpanginya berdasarkan alasan yang logis sesuai dengan pinsip the judiciary independence dan judiciary accountability serta konsepsi the living constitution.The enforceability of jurisprudence as one of the recognized legal sources in Indonesia is a compelling research topic. Indonesia that uses the civil law on law system does not bind to jurisprudence. Nevertheless, if there is a decision that is contradictory to the previous one, that will be a debate over how the enforceability of the existed jurisprudence. The Constitutional Court as one of the judicial authority has the authority to examine the law against the Constitution 1945 of the State of the Republic of Indonesia. In its authority, the Constitutional Court is bumped by a previous decision which has become a landmark but was not followed. In other words, there is a contradiction between the previous decision and the present decision. This research will see how the enforceability of jurisprudence on the judicial review in the decision of the Constitutional Court. The analysis method used is literature study using case study approach. The conclusion available in this study is that jurisprudence is a source of law that can be a reference in a union of judicial review cases but not bound by judges to deviate based on logical reasons in the judiciary independence and judiciary accountability as well as the conception of the living constitution.

The Efficacy of Traditional Dispute Resolution Mechanisms (TDRMS) in Achieving Access to Justice for Marginalised: A Focus on the Kipsigis Community in Kenya

2020 ◽  
Vol 8 (1) ◽  
pp. 149-171
Author(s):  
Joseph Sergon ◽  
Prof Albert Mumma
Keyword(s):  
Dispute Resolution ◽  
Rule Of Law ◽  
Access To Justice ◽  
Community Members ◽  
The Rule Of Law ◽  
Natural Justice ◽  
Study Approach ◽  
The Right ◽  
Formal Justice

The constitutional recognition of traditional dispute resolution mechanisms (TDRMs) legitimises them as complementary avenues to access to justice in Kenya. However, the lack of clarity regarding the scope of these mechanisms makes it difficult to integrate them with the formal justice systems. An understanding of how the mechanisms work is critical in addressing this lacuna. Using a case study approach, this Article discusses the typology of TDRMs in Kenya, and the disputes involved based on examples from the Kipsigis community. It also outlines the Kipsigis TDRM procedures in both criminal and civil cases. The article also discusses the issue of jurisdiction, various reporting and trial stages, whether there are any appellate bodies, enforcement of awards, compensation, and whether any cases have been referred to courts and vice versa. The purpose of the study is to lay a basis for the analysis of TDRMs from a natural justice perspective with the Kipsigis community as the point of focus. The study found that the Kipsigis TDRMs are considered effective avenues for access to justice for those who lack the means to access courts. The community finds the TDRMs fair as they listen to the parties in an open forum and community members are welcome to participate, unlike judicial processes, which are typically adversarial. Yet, a question arises whether TDRMs, by their nature, meet the principles of natural justice and the rule of law, particularly the threshold set for the protection of the right to a fair trial and equality. This article examines the extent to which the Kipisgis TDRMs blends with the principles of natural justice or procedural fairness, and the rule of law.

scholarly journals The Ruling of the Constitutional Court of the Republic of Indonesiaconcerning Children Age Limit and its Rights

2018 ◽  
Vol 40 (2) ◽  
pp. 61
Author(s):  
Bagus Hermanto
Keyword(s):  
Child Protection ◽  
Constitutional Court ◽  
Human Right ◽  
Constitutional Review ◽  
Study Approach ◽  
Presidential Decree ◽  
Age Limit ◽  
The Law ◽  
The Republic

Indonesian laws determines different age limit for the children. The Law of Republic of Indonesia Number 1 Year 1974 concerning Marriage holds the age limit for the children until 16 years old for the women and 19 years old for the men. Meanwhile, on the Law of Republic of Indonesia Number 23 Year 2002 concerning Child Protection, the age limitation both for women and men is 18 years old. This Child Protection Act has adopted norm as stipulated in the Convention of the Rights of Children, as ratified through Presidential Decree Number 36 Year 1990. Some violations of the human right of children in Indonesia were more or less related to the unclear limitation of the age of children. A few years ago, this situation was brought into legal concern as a constitutional review was lodged before the Constitutional Court of Republic of Indonesia. This court has finally issued a Judgment Number 30-74/PUU-XII/2014 that addressing the issue in concern. Once should be noted that not all Justices had a similar opinion on the Judgment as one Justice expressed a different opinion. The main purpose of this paper is to analyze the legal consideration contained in this Judgment. In addition, it also intends to criticize the Justice’s Dissenting Opinion that was addressed against this Judgment. This paper is set as a Normative Legal Research that uses case study approach and statutory approach. Key Words      : Constitutional Court, Indonesia, Children Rights, Age Limit.

Schröder’s Dissolution of the Bundestag Approved

2006 ◽  
Vol 2 (1) ◽  
pp. 5-20 ◽  
Author(s):  
Ulrike Heckötter ◽  
Christoph Spielmann
Keyword(s):  
Rule Of Law ◽  
Political Crisis ◽  
Constitutional Court ◽  
German Government ◽  
The Rule Of Law ◽  
Judicial Control ◽  
Division Of Powers ◽  
German Constitutional Court ◽  
The Stability

Dissolution of the Bundestag by the Federal President on advice of Federal Chancellor — A ‘negative’ motion for a vote of confidence — Precedents of 1972 and 1982 — Dissolution in conformity with the constitution according to German constitutional court — The existence of a political crisis sine qua non for a dissolution to be constitutionally legitimate — Limited judicial control on decision to dissolve as set out in a 1983 ruling even further limited in the 2005 ruling — Effects of the exercised judicial self-restraint on constitutional division of powers — No proof for a decline of the rule of law or of acceptance of directly democratic elements — Strengthening of the powers of the Federal Chancellor sign of faith in the stability of the German government system.

scholarly journals PERSAMAAN DERAJAT TERHADAP PEMBAGIAN HAK WARIS ANAK DALAM PUTUSAN MAHKAMAH KONSTITUSI NOMOR 46/PUU-VIII/2010

2014 ◽  
Vol 6 (2) ◽  
Author(s):  
Atik Abidah
Keyword(s):  
Civil Rights ◽  
Constitutional Court ◽  
Case Study Approach ◽  
Study Approach ◽  
Equality Rights ◽  
Biological Children ◽  
Legal Consequence ◽  
The Republic ◽  
The Relationship

This research aims to analyze the equality rights of biological children in the decision of the Constitutional Court of the Republic of Indonesia number: 46/PUU-VIII/2010 and its legal consequence. This research included in the normative legal research that used a statue approach and case study approach. The research’s data analyzed using preskriptive-analytic methode and hermeneutic methode. The Research’s results showed that the  decision of  Constitutional Court of the Republic of Indonesia number: 46/PUU-VIII/2010 expand the interpretation of the concept of nasab from legal  children towards biological children to achieve the equality and the sense of fairness. This verdict also expand the interpretation of the evidence. The relationship between parents <br />and their childrens can be proved with the aid of science and technology. The similarity of DNA / RNA betwen parents and their childern is the ratio legis ('illat al-hukm) that into consideration the biological children acquire the civil rights, including inheritance rights.

Sign in / Sign up

Export Citation Format

Share Document