scholarly journals Powers and Limits of State during COVID-19 Pandemic: a Critical Appraisal

Yuridika ◽  
2021 ◽  
Vol 36 (3) ◽  
pp. 663
Author(s):  
Iwan Satriawan ◽  
Devi Seviyana
Keyword(s):  
Rule Of Law ◽  
House Of Representatives ◽  
Critical Appraisal ◽  
Balance Of Power ◽  
The State ◽  
Fundamental Rights ◽  
State Of Emergency ◽  
The Rule Of Law ◽  
Power Limits ◽  
The Government

The research aims to analyze the power and limit of the state and whether Indonesia has properly adopted the concept of powers and limits during state emergency of COVID-19 pandemic. The method of the research was normative legal research which used statute and case approach were employed for data analysis. The result shows that a state may apply some types of power in an emergency condition. However, in using its powers, the government must consider principle of limits in a state of emergency. In fact, Indonesia does not properly adopt the balance of power and limit in the state of emergency during COVID-19 pandemic. It is true that the government may take actions to respond to the COVID-19 pandemic. However, the State cannot exceed the limitations of using powers in accordance with state emergency principle. There was a tendency to exceed the limits by the State during the pandemic. The State has violated some state of emergency principles during COVID-19 pandemic such as temporary, the rule of law, necessity, proportionally, intangibility, constitutionalism, harmony, and supervision. The research recommends that the Government and the House of Representatives (the DPR) in the future should obey the state of emergency principles, particularly in terms of state power limits to respect constitutional principles and rule of law. In addition, individuals, groups of people, or organizations may submit judicial review of laws or regulations that violate the state of emergency principles in handling pandemic in the light of protecting the fundamental rights of citizens.

The Rule of Law and Good Governance

2019 ◽  
pp. 75-90
Author(s):  
Henk Addink
Keyword(s):  
Rule Of Law ◽  
Good Governance ◽  
Common Law ◽  
The State ◽  
Fundamental Rights ◽  
The Rule Of Law ◽  
Judicial Control ◽  
The Common ◽  
The Government ◽  
Continental Tradition

The concept of the rule of law has different—common law and continental—historical roots and traditional perspectives. The common law tradition is more focused on limiting the powers of the state, whereas the continental tradition focuses on not just to limit but also to empower the government. But both systems have a focus on the rule of law. The rule of law in the classical liberal tradition is based on four elements: legality, division and balance of powers, independent judicial control, and protection of fundamental rights. The differences between rule of law and rechtsstaat are: different concepts of the state, mixed legal systems and different approaches of a constitution, and different perspectives on human rights. There are two levels of development: a model in which law is a way of structuring and restricting the power of the state, the second level is more subjective and has important individual positions. The concept of good governance related to these developments makes clear the need to broaden the concept of the rule of law.

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.

scholarly journals Functions of the state: concepts, classifications, scientific interpretations

1970 ◽  
pp. 406-410
Author(s):  
Marharyta Butsan
Keyword(s):  
Rule Of Law ◽  
Public Life ◽  
The State ◽  
Political Life ◽  
Historical Period ◽  
Legal Form ◽  
The Rule Of Law ◽  
The Government ◽  
Cultural Functions ◽  
State Functions

In the article the concept of state functions, realizing which the state carries out a targeted management impact on various spheres of a public life. They show that the government should do to achieve and implement the goals and tasks that lie before him in a certain historical period. Purposes of the functions of the state are the results that must be obtained in implementing the functions, goals can be immediate, intermediate, ultimate. On one stage of historical development, priority may be given to economic, the other political or socio-cultural functions, the third function of defense, etc. At the beginning of its inception, the state played a very small list of functions. The contents of most of them was of a pronounced class character. The functions manifest national characteristics of the country, because the state is obliged to provide the geopolitical interests of the ethnic group, to support the development of national culture, language, and the like. The contents and the list of functions to a large extent depend on the nature of the state, its social purpose in public life. The main duty of the state to maintain a level of social organization that would ensure not only the preservation of the integrity and prosperity of society as a whole, but also the needs of individuals. The article studies scientific approaches with respect to interpretation of the concept of functions, given the existing classification of state functions: the areas of activities of the state, duration and the like. The analysis of existing functions in Ukraine. The human rights function is currently the most relevant. Advocacy function has the expression in activities that are aimed at protecting the rights and freedoms of man and citizen, the rule of law and the rule of law in all spheres of public and political life. The peculiarities of exercise of the functions of the state are divided into legal and organizational. The legal form is a homogenous activity of state bodies related to the adoption of legal acts. Organizational form is a homogenous activity of the state aimed at creating organizational conditions to ensure functions of the state. In Ukraine there are three main forms of implementation of the activities of the state depending on types of activities: legislative, Executive, judicial. The basis for this separation is the provision of the Constitution of Ukraine, which is highlighted in these branches of government. In the implementation of all main functions of the state are actively involved all types of public power in Ukraine.

An Overview of Good Governance

2019 ◽  
pp. 15-24
Author(s):  
Henk Addink
Keyword(s):  
Rule Of Law ◽  
Good Governance ◽  
Administrative Law ◽  
The State ◽  
Institutional Framework ◽  
The Rule Of Law ◽  
Administrative Legislation ◽  
The Government

Good governance is needed because of legislative gaps, prevention of corruption, maladministration, and mismanagement, and fragmentation of administrative law norms. The concept of good governance has been developed in addition to aspects which can already be found in the rule of law and democracy concepts but are also related to the institutional framework of the government. The term ‘government’ is used for all the powers in the state; the administration is only one of these powers. These powers must fulfil certain norms, principles which sometimes are unwritten and developed by the judiciary or the ombudsman but more and more codified in the frame of the general (administrative) legislation. All the institutions of the government are involved in the development of these principles of good governance. There is not only a separation between the powers of the state, but more and more there are interactions between these powers in the development of principles of good governance and, hence, there is a balance between these principles. Therefore, there are different producers and sources of good governance.

2. Democratic and Undemocratic States

2009 ◽  
Author(s):  
Richard Rose
Keyword(s):  
Rule Of Law ◽  
The State ◽  
Trial And Error ◽  
The Rule Of Law ◽  
Democratic State ◽  
Gradual Evolution ◽  
The Will ◽  
The Government

This chapter discusses the distinction between democratic and undemocratic states, noting that it is not only about whether there are elections: it is about whether or not it there is the rule of law. When both conditions are met, elections are free and fair and the government is accountable to the electorate. When laws can be bent or broken, unfair elections represent the will of governors more than that of the governed. The chapter first defines democratic states and outlines the characteristics of a democratic state before assessing the state of states today. It then considers three kinds of undemocratic states, namely: constitutional oligarchy, plebiscitarian autocracy, and unaccountable autocracy. It also examines how democratization has more often come about by trial and error rather than through gradual evolution and concludes by analysing the dynamics of democratic and undemocratic states.

The state of emergency in the Weimar Republic Legal disputes over Article 48 of the Weimar Constitution

2010 ◽  
Vol 78 (1-2) ◽  
pp. 135-158 ◽  
Author(s):  
Marc de Wilde
Keyword(s):  
Rule Of Law ◽  
Weimar Republic ◽  
The State ◽  
Legal Positivism ◽  
Carl Schmitt ◽  
Annual Conference ◽  
State Of Emergency ◽  
The Rule Of Law ◽  
Legal Norms

AbstractThe article analyzes the debate on 'constitutional dictatorship' that took place at the first annual conference of the Association of German Constitutional Lawyers in Jena in 1924. In their keynote lectures, Carl Schmitt and Erwin Jacobi argued that Article 48 of the Weimar Constitution authorized the President of the Reich to derogate from the rule-of-law provisions of the constitution if this was necessary to save its 'political substance'. Advocating a 'doctrine of derogation', they implicitly criticized one of the main methodological assumptions of legal positivism, i.e., that legal norms and politics, law and power, had to remain strictly separated. They thereby set the stage for the emerging 'conflict of methods and directions' that was to haunt German jurisprudence in subsequent years.

scholarly journals Federal Democratic Republic of Nepal: An Assessment of the Rule of Law

2021 ◽  
Vol 21 ◽  
pp. 1-8
Author(s):  
Than Bahadur Chhetri
Keyword(s):  
Rule Of Law ◽  
Political System ◽  
Democratic Republic ◽  
Fundamental Rights ◽  
The Rule Of Law ◽  
State Institutions ◽  
Independent Judiciary ◽  
The Government ◽  
High Level ◽  
Online Sources

The Rule of law, a set of principles of governance, apply to all individuals, organizations and the government itself. Democracy is a political system governed by the rule of law. No rule of law means no democratic future. This paper aims to assess the state of the rule of law under the new political setup, taking the rule of law as dependent variable and fundamental rights, corruption, open parliament and independent judiciary as independent variables. To measure the rule of law, necessary information was collected from printed and online sources. A federal democratic republic can grow healthy only when there exists the rule of law and efficient state institutions. The fundamental problems in strengthening the rule of law obstructed by the tendency of personalization and frequent intervention in state institutions, high level of corruption at policy level, poor legislative bill formulation, the controversial appointing process of the judges and the political dominations. The acceptance of international norms to address the justice and to promote human rights, adhering to the principle of inclusion and equality, maintaining transparency rule in the appointment in various constitutional bodies and keeping out of executive influence to maintain impartial and independent institutions can help in strengthening the rule of law. 

scholarly journals Implementasi Penerapan Undang-Undang Nomor 13 Tahun 2006 tentang Perlindungan Saksi dan Korban (Sudi di Polres Kuningan)

2015 ◽  
Vol 2 (1) ◽  
Author(s):  
Haris Budiman dan Gios Adhyaksa
Keyword(s):  
Rule Of Law ◽  
The State ◽  
Trial Judge ◽  
The Rule Of Law ◽  
Operational Costs ◽  
The Law ◽  
The Government ◽  
The Cost ◽  
Unwritten Law

Article 1 (1) of the 1945 Constitution states that, Indonesia is the law of the State in the form of Republic. Therefore, the provisions of the applicable legislation and set the life of the Indonesian nation comes from the law, whether written or unwritten law. One runway is used as basic guidelines in order to achieve justice for all Indonesian people, especially in the field of law, set forth in Article 27 paragraph (1) of the Act of 1945, which reads, "All citizens are equal before the law and government and must uphold the rule of law and without exception. " Protection of witnesses reporting the crime of pornography, the identity of a witness, obviously very secret and confidential examined by the police, even on a trial judge has no right to bring a witness, before the trial because the reporter's identity confidentiality is strictly protected by the Law No. 44 Year 2008 on pornography.  Factors that became penghamabat the police to provide protection against the crime of pornography reporting, that one of the eligibility period and the cost to hold the protection of witnesses and victims must require substantial funds, although basically the police have been very ready to implement the law , subject to the government in terms of a special budget for the program of protection, especially for operational costs in the field.  Keywords: Crime, Pornography, Witness, Protection. 

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