scholarly journals CONSTITUENT POWER: THE THEORY AN D PRACTICE OF ITS IMPLEMENTATION IN UKRAINE

2018 ◽  
Vol 6 (4) ◽  
pp. 37-61
Author(s):  
Hryhorii Berchenko ◽  
Serhii Fedchyshyn
Keyword(s):  
Theoretical Concept ◽  
Constitutional Reform ◽  
Constitutional Court ◽  
Constituent Power ◽  
Acceptable Solution ◽  
The People ◽  
The Future ◽  
The Law ◽  
Power Concept

The article researches the phenomenon of constituent power as a theoretical concept and the practice of its implementation in Ukraine. Constituent power is associated with the process of adopting a constitution and making amendments to it. A distinction is made between primary and institutional constituent powers. The constituent nature of the Constitution of Ukraine in the interpretation of the Constitutional Court of Ukraine is analyzed. The reasons why the Law “On an All-Ukrainian Referendum” was held invalid with regard to the constituent power of the people is considered. There is an inconsistency in the primary and institutional constituent powers’ interpretation of amendments to the Constitution of Ukraine. The constitutional reform of 2004, the interference with this reform by the Constitutional Court of Ukraine in 2010 and its return by the parliament in 2014 are examined from the standpoint of the constituent power concept. It is concluded that a new constitutional reform, which would provide a clean slate, could be an acceptable solution in Ukraine. In the future, the text of the reformed Constitution should provide for clear mechanisms for amending the Constitution of Ukraine and the adoption of a new Constitution, which would necessarily include procedures for popular legitimacy.

scholarly journals The Elimination of Constitutional Court's Authority in The Dispute Case of General Election of Regional Head (Analysis of Decision of the Constitutional Court Number 97/PUU-XI/2013)

2017 ◽  
Vol 5 (2) ◽  
Author(s):  
Jentel Chairnosia
Keyword(s):  
Dispute Resolution ◽  
Vice President ◽  
General Election ◽  
Constitutional Court ◽  
The Public ◽  
The People ◽  
The Law ◽  
Settlement Of Disputes

The enactment of Law Number 32 Year 2004 is a manifestation of the development ofadvanced democracy, namely all local chief elected directly by the people except the positionof the Governor of Yogyakarta. However, in its development, the implementation of theGeneral Elections of Regional Head gave rise to dissatisfaction which resulted in the appealof the results of the General Election to the court for various reasons. The presence of theConstitutional Court as an institution that resolved the dispute over the General Election ofRegional Heads has not been able to provide justice to the public, especially the emergenceof many Constitutional Court rulings that cause debate. In its development, the ConstitutionalCourt abolished its authority in the settlement of disputes in the General Election of RegionalHeads as stipulated in Decision Number 97 / PUU-XI / 2013. The Constitutional Court is ofthe opinion that the Constitutional Court only has the authority to resolve election disputes ofDPR, DPD, President/Vice President because the election is done nationally, while theelection is conducted in certain areas only. In addition, the volume of incoming cases relatedto election disputes more than the law review case which is the main authority of theConstitutional Court, so that this can affect the quality of the decisions of the ConstitutionalCourt considering the dispute resolution of the results of the General Election should beterminated within fourteen days. DOI: 10.15408/jch.v5i2.7090

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 Calon Tunggal dalam Pilkada Serentak Tahun 2015 terhadap Putusan Mahkamah Konstitusi No 100/PUU-XIII/2015

2016 ◽  
Vol 13 (2) ◽  
pp. 379
Author(s):  
R. Nazriyah
Keyword(s):  
Constitutional Court ◽  
Local Elections ◽  
Single Pair ◽  
Election Law ◽  
The People ◽  
Registration Period ◽  
The Law

The phenomenon of a pair-single candidate threatens delays in the implementation of simultaneous Regional Head Elections in some districts until 2017. Although the Commission extends the registration period of candidates to avoid the delay of elections simultaneously, there are still some districts that have a single candidate. The law on elections has not set the provisions definitely regarding what should be done if there is the phenomenon of a single candidate. Finally the parties who feel aggrieved the rights had filed a judicial election law to the Constitutional Court (MK) to find solutions to these issues. In its decision, the Court considered that the Act mandates the election as the executor of the sovereignty of the people to elect regional heads directly and democratically. Thus, the local elections should ensure the realization of the highest power in the hands of the people. In addition, the Court also considers the formulation of norms of Law No. 8 of 2015, which requires the presence of more than one pair of candidates does not provide a solution, which led to the legal vacuum. This can result in absent of holding the elections. Local elections which are only followed by a single pair of candidates, the mechanism selection is to determine whether the “Agree”  or “Disagree” with   the prospective partner. If it turns out the people’s voice is more to select “Agree” then the candidate is designated as regional head and deputy head of the selected district. Conversely, if it turns out the people’s voice is more to select “Disagree” then in such circumstances the election is postponed until the next local elections simultaneously.

scholarly journals Vigilando al vigilante: el Tribunal Constitucional y sus circunstancias = Guarding the guardian: The constitutional court and its circumstances

2017 ◽  
pp. 135
Author(s):  
Miguel Ángel Alegre Martínez
Keyword(s):  
The State ◽  
Constitutional Reform ◽  
The Other ◽  
Constitutional Court ◽  
Constituent Power ◽  
Spanish Constitution ◽  
The Will ◽  
Constitutional System ◽  
The One ◽  
The Guardian

<p>El escaso uso de los mecanismos de reforma constitucional ha hecho recaer sobre el Tribunal Constitucional, casi en exclusiva, la tarea de actualizar la Constitución española de 1978, a través de la interpretación evolutiva de la misma. En este trabajo, nos ocupamos, por una parte, de las dificultades a las que el Tribunal Constitucional ha tenido que enfrentarse en el desempeño de sus funciones; y, por otra, en el mayor o menor acierto en el ejercicio de las mismas. Reflexionamos sobre la delicada posición del Tribunal Constitucional, situado en el límite entre interpretar la voluntad del poder constituyente y sustituirla; así como en la frontera entre el activismo y la autocontención. Intentamos establecer la incidencia de algunas de sus decisiones sobre los problemas que afectan actualmente a nuestro sistema constitucional, en especial al Estado de las Autonomías.</p><p> </p><p>The limited use of the mechanisms of constitutional reform has made to rest on the Constitutional Court, almost exclusively, the task of updating the Spanish Constitution of 1978, through its evolutive interpretation. In this paper, we attend to, on the one hand, the difficulties to which the Constitutional Court has had to face in the development of its functions; and, on the other hand, the greater or lesser success in the exercise of the same. We reflect about the delicate position of the Constitutional Court, located on the border between interpreting the will of the constituent power or replace it; as well as on the border between activism or self-restraint. We are trying to establish the incidence of some of its decisions on the problems that currently affect our constitutional system, in particular to the State of Autonomies.</p>

scholarly journals PENYELESAIAN PERSELISIHAN HASIL PEMILIHAN KEPALA DAERAH PASCA PUTUSAN MK NO. 97/PUU-XI.2013

2015 ◽  
Vol 4 (1) ◽  
pp. 139
Author(s):  
Indra Hendrawan
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Dispute Resolution ◽  
Government Regulation ◽  
Constitutional Court ◽  
The Supreme Court ◽  
The Future ◽  
The Law ◽  
Dispute Resolution Mechanism ◽  
Regional Leaders

Undang-Undang Nomor 1 Tahun 2015 tentang Penetapan Perpu Nomor 1 Tahun 2014 tentang Pemilihan Gubernur, Bupati dan Walikota Menjadi Undang-Undang mengamanatkan Mahkamah Agung sebagai lembaga yang berwenang menyelesaikan perselisihan hasil pemilihan kepala daerah. Namun tanpa sempat diimplementasikan, Undang-Undang tersebut telah direvisi kembali melalui Undang-Undang Nomor 8 Tahun 2015 dengan melimpahkan penyelesaian perselisihan hasil pemilihan ke badan peradilan khusus. Perubahan Undang-Undang secara cepat tersebut telah menimbulkan pertanyaan, kemanakah arah kebijakan penyelesaian perselisihan di masa mendatang? Dengan pendekatan yuridis normative, tulisan ini mencoba menguraikan refleksi penyelesaian perselisihan di Mahkamah Agung ataupun Mahkamah Konstitusi selama satu dasawarsa terakhir untuk mendapatkan penanganan ideal yang harus dilakukan dalam rangka perbaikan penanganan perselisihan hasil pemilihan kepala daerah di masa mendatang. Berdasarkan hal tersebut, penempatan hakim-hakim yang berintegritas, mumpuni serta yang mengedepankan keadilan substantif dalam penyelesaian perselisihan merupakan hal mutlak yang harus dilakukan. Selain itu, perbaikan juga tidak cukup hanya pada tahap penanganan perselisihan hasil saja, perlu pula ada optimalisasi penegakan hukum di tahap-tahap sebelumnya yang dilakukan oleh KPU, Bawaslu/Panwaslu, DKPP ataupun penegak hukum lainnya.<p>Law No. 1 of 2015 on Enactment of Government Regulation in Lieu of Law No. 1 of 2014 concerning the election of Governor, the Regent and Mayor Become Law mandates the Supreme Court as an authorized institution to settle disputes about electoral result from the local election for regional leaders. However, without a chance to be implemented, the Law has been revised by Law No. 8 of 2015 in which any disputes that arise from the results of the election are delegated to a special judicial body. The ammendment has raised question, to where the policy of dispute resolution will be directed in the future? Using normative juridical approach, this paper tries to elaborate the reflection of dispute resolution in the Supreme Court or the Constitutional Court during the last decade to find out ideal treatment should be applied in order to improve the dispute resolution mechanism in the future. So, the placement of judges who have integrity, capability, and put the substantive fairness in the dispute resolution is absolute term. In addition, the improvement is not enough in just handling the dispute resolution stage, there should also be optimizing of the the law enforcement in the earlier stages that were carried out by the General Election Commission, Bawaslu/Panwaslu, DKPP or other law enforcement bodies.</p>

scholarly journals WHAT SHOULD BE THE FORM OF PUBLIC PARTICIPATION IN THE LAWMAKING PROCESS? AN ANALYSIS OF SOUTH AFRICAN CASES

Obiter ◽  
2014 ◽  
Vol 35 (1) ◽  
Author(s):  
Moses Retselisitsoe Phooko
Keyword(s):  
Public Participation ◽  
South African ◽  
Public Involvement ◽  
Participatory Democracy ◽  
Representative Democracy ◽  
Constitutional Court ◽  
The Public ◽  
The People ◽  
The Law ◽  
Law Making

South Africa’s new constitutional democracy places a duty on various legislators to facilitate public participation in the law-making process as mandated by the principles of participatory democracy provided for in the Constitution of South Africa, 1996. This has resulted in a series of court cases wherein the electorate, inter alia, challenged the legislation on the basis that the results did not reflect the views of the people. The courts’ earlier jurisprudence seemed to be placing more emphasis on participatory democracy as opposed to representative democracy. However, recent court decisions indicate a shift towards representative democracy. The central question presented in this paper is whether the consideration of the views of the public by the provincial and national legislatures is merely a matter of procedure, or that those views are indeed considered in the law-making process. In an attempt to answer this question, the paper will evaluate and critique some of the Constitutional Court and the Supreme Court of Appeal decisions on public involvement in either the legislative or law-making process. The argument presented in this discourse is that, if the public’s wishes are considered by the legislature, then the outcome would be influenced by the people’s demands. An otherwise negative outcome shows that public participation in the law-making process is a procedural matter and has no substantive value.

scholarly journals CONSITUTIONAL QUESTION (MENYOAL KONSTITUSIONALITAS PASAL TENTANG PENGEMIS KUHP PASAL 504 AYAT (1) DAN (2)

2010 ◽  
Vol 40 (1) ◽  
pp. 113
Author(s):  
Isrok Isrok
Keyword(s):  
Social Rights ◽  
Constitutional Court ◽  
Rights Protection ◽  
The People ◽  
The Social ◽  
The Law

AbstrakHuman rights, as literated in constitution, described that "every people havethe social rights which is make the people able to develop theirselves totally,as the dignity people ". Besides, it is !iterated in the constitution, which isrelating with the social prosperity, "poors and abandoned children areprotected and cared by nation. The case abaut twelve jakarta's persons whobeing arrested, who give a gift to the beggars coordinators was chased andfive beggar connectors arrested, then been judged are incidents that bringpro and contra in opinion. Judge, as one of four law enforcers, in judgingsame chase which is clearly !iterated in the constitution law norm(regulation) has to be the foundation in his decicion, the judge must discover,fallow and understand the value and justness sense in the society. But, ifther 's same case that make the judge tesitate abaut the exiting regulation,then he may have a constitutional question. Constitutional question is theregulation testing which is dealing with same case, the constitutionalquestion is needed to extend the supremacy of the law and peoplescontitutional rights protection. Is same countries, like Germany, Croatia,Australia, and others countries, constitutional question is under the authorityof constitutional court, what about in Indonesia?

So Much Law so Little Protection! A Case Study of the Protection of the Narwhal

2009 ◽  
Vol 1 (1) ◽  
pp. 21-54
Author(s):  
Malgosia Fitzmaurice
Keyword(s):  
Endangered Species ◽  
Acceptable Solution ◽  
National Legislation ◽  
The Future ◽  
The Law ◽  
State Of Affairs ◽  
Almost All ◽  
International Instruments

Abstract This essay investigates the effectiveness of various international instruments at global, regional, bilateral and European levels and national legislation in relation to the protection of the narwhal. Narwhal is listed on almost all the most important conventions protecting biodiversity as endangered species, as well as the CITES. However, due to various gaps in the law and in some instances disagreements between States parties to conventions how to interpret their jurisdictional scope (e.g. the International Whaling Convention), narwhal are not sufficiently protected and its numbers are dwindling towards extinction. However, there is no a simple answer to this state of affairs as there are a multitude of factors, ecological, sociological and political which play a role in the management of narwhal stocks. The best way forward is basing the future cooperation regarding this issue at the regional or bilateral levels, as the directly involved and interested stakeholders will find the most acceptable solution, which will take into account all the above-mentioned factors.

scholarly journals Prediktabilitas Ajudikasi Konstitusional: Mahkamah Konstitusi dan Pengujian Undang-Undang

2016 ◽  
Vol 13 (2) ◽  
pp. 259
Author(s):  
Titon Slamet Kurnia
Keyword(s):  
Presidential Election ◽  
Constitutional Court ◽  
The Past ◽  
The Future ◽  
Strong Commitment ◽  
The Law ◽  
Constitutional Adjudication

There is a strong commitment that constitutional adjudication should be more predictable. As a principle, what has been rightly decided in the past should be the law for the future cases or controvercies. This article makes a substantial critics directed to the constitutional court of decision Number 14/PUU-XI/2013 on the constitutionality of presidential election rules. This articles argues that the decision shows that predictability is still a serious matter in constitutional adjudication in Indonesia. The author then recommends that to be more predictable the constitutional of court should make a judicial tradition for respecting its past right decisions.

The Legitimacy of Provisional General Budget Laws in the Jordanian Legal System

2013 ◽  
Vol 17 (1) ◽  
pp. 141-195
Author(s):  
Lena Shabeeb
Keyword(s):  
Legal System ◽  
Separation Of Powers ◽  
Constitutional Reform ◽  
Executive Power ◽  
Constitutional Court ◽  
Checks And Balances ◽  
Legislative Power ◽  
The Future

This study examines the legitimacy of the recurrent conduct, adopted by the Jordanian Executive Power, of issuing Provisional General Budget Laws, in the absence of the Legislative Power. This study proves the unconstitutionality of such conduct, and looks at the prospects of progress in the future. Issuing Provisional General Budget Laws is a culmination of several misconceptions of some important Constitutional Articles; especially the ones that reflect how the principle of separation of powers is adopted in the Jordanian Constitution, and how the different interlocking functions of both the Executive and the Legislative Powers should be interpreted and applied. Article 94, providing for the legislative function of the Executive Power in the absence of the Legislative Power, is interpreted and applied broadly. Issuing Provisional General Budget Laws mean that the Executive Power assumes the legislative Power and not a temporary legislative role, as provided in the Constitution. Hence, contradicting another two important systems provided therein: first, the financial check, as part of the checks and balances system, provided in Chapter Eight, especially Article 112. Second, the apportionment method, provided in Article 113, which should be applied in the absence of the Legislator. Unfortunately, the 2011 Constitutional Reform, although somewhat progressive, does not remove such well-rooted misconceptions; leaving the Constitutional Court as the last resort in rectifying the situation.

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