scholarly journals A Critical Analysis of Judicial Appointment Process and Tenure of Constitutional Justice in Indonesia

2016 ◽  
Vol 1 (2) ◽  
pp. 152
Author(s):  
Pan Mohamad Faiz
Keyword(s):  
Critical Analysis ◽  
Judicial Independence ◽  
Essential Elements ◽  
Public Confidence ◽  
Constitutional Court ◽  
Selection Committee ◽  
State Institutions ◽  
Constitutional Justice

The judicial appointment process is one of essential elements for maintaining judicial independence and public confidence of a court. This article analyses the practices of judicial appointment process exercised by three different main state institutions in selecting constitutional justice in Indonesia where the mechanism and process for selecting them have been implemented differently. It also examines the tenure of constitutional justice, which is a five-year term and can be renewed for one term only, that may lead to another problem concerning the reselection process of incumbent constitutional justices for their second term. The article concludes that the judicial appointment process and tenure of constitutional justice in Indonesia have to be improved. It suggests that if the proposing state institutions could not meet the principles of transparency, participation, objective and accountable required by the Constitutional Court Law, the judicial appointment process should be conducted by creating an independent Selection Committee or establishing a cooperation with the Judicial Commission. Additionally, the tenure of constitutional justices should also be revised for a unrenewable term with a longer period of nine or twelve years.

scholarly journals A Critical Analysis of Judicial Appointment Process and Tenure of Constitutional Justice in Indonesia

2016 ◽  
Vol 1 (2) ◽  
pp. 152
Author(s):  
Pan Mohamad Faiz
Keyword(s):  
Critical Analysis ◽  
Judicial Independence ◽  
Essential Elements ◽  
Public Confidence ◽  
Constitutional Court ◽  
Selection Committee ◽  
State Institutions ◽  
Constitutional Justice

The judicial appointment process is one of essential elements for maintaining judicial independence and public confidence of a court. This article analyses the practices of judicial appointment process exercised by three different main state institutions in selecting constitutional justice in Indonesia where the mechanism and process for selecting them have been implemented differently. It also examines the tenure of constitutional justice, which is a five-year term and can be renewed for one term only, that may lead to another problem concerning the reselection process of incumbent constitutional justices for their second term. The article concludes that the judicial appointment process and tenure of constitutional justice in Indonesia have to be improved. It suggests that if the proposing state institutions could not meet the principles of transparency, participation, objective and accountable required by the Constitutional Court Law, the judicial appointment process should be conducted by creating an independent Selection Committee or establishing a cooperation with the Judicial Commission. Additionally, the tenure of constitutional justices should also be revised for a unrenewable term with a longer period of nine or twelve years.

scholarly journals Periode Masa Jabatan Hakim Konstitusi dan Implikasinya terhadap Kemandirian Kekuasaan Kehakiman (Term of Office for Constitutional Justices and Its Implications against Judicial Independence)

2020 ◽  
Vol 11 (2) ◽  
pp. 191-210
Author(s):  
Novianto Murti Hantoro
Keyword(s):  
Judicial Review ◽  
Political Influence ◽  
Judicial Independence ◽  
Retirement Age ◽  
Constitutional Court ◽  
Time Length ◽  
Constitutional Justice ◽  
The Republic

Constitutional justices have a five-year term and can be re-elected for only one subsequent term. There has been an effort to correct this provision through a request for judicial review of the Constitutional Court Law. Still, there is no decision by the Constitutional Court which states that the term of office of constitutional justice is against the 1945 Constitution of the Republic of Indonesia. This paper analyzes the need to reform the provisions regarding the term of office of constitutional justices associated with the principle of judicial independence. An analysis of the term of office of constitutional justices was also carried out by comparing international principles and practices in other countries. The term of office of 5 years and can be re-elected has its weaknesses, because it opens up opportunities for political influence and controversy in candidacy proposal for the second term of constitutional justices. This term of office needs to be changed with a longer time length without extension combined with the retirement age. The determination of the term of office of constitutional justices which is related to the judicial independence cannot be separated from the requirements, selection, supervision, and dismissal of constitutional justices. Those requirements, mechanisms for selection, supervision, and dismissal of constitutional justices also need to be improved. AbstrakHakim konstitusi memiliki periode masa jabatan lima tahun dan dapat dipilih kembali hanya untuk satu kali masa jabatan berikutnya. Ketentuan ini telah coba dikoreksi melalui permohonan uji materi terhadap UU Mahkamah Konstitusi (MK), tetapi tidak ada putusan MK yang menyatakan periode masa jabatan hakim konstitusi bertentangan dengan UUD NRI Tahun 1945. Tulisan ini menganalisis mengenai perlunya reformulasi ketentuan mengenai periode masa jabatan hakim konstitusi dikaitkan dengan prinsip kemandirian kekuasaan kehakiman. Analisis mengenai periode masa jabatan hakim konstitusi juga dilakukan dengan membandingkan prinsip internasional dan praktik di negara lain. Periode masa jabatan 5 tahun dan dapat dipilih kembali memiliki kelemahan, karena membuka peluang pengaruh politik dan kontroversi pada pengajuan calon hakim konstitusi periode kedua. Periode masa jabatan ini perlu diubah dengan masa jabatan yang lebih lama tanpa perpanjangan dikombinasikan dengan usia pensiun. Penentuan periode masa jabatan hakim konstitusi yang dikaitkan dengan kemandirian kekuasaan kehakiman tidak dapat lepas dari persyaratan, seleksi, pengawasan, dan pemberhentian hakim konstitusi. Persyaratan, mekanisme seleksi, pengawasan, dan pemberhentian hakim konstitusi juga perlu disempurnakan.

JUDICIARY AND JUDICIARY OF UKRAINE IN THE CONTEXT OF THE NATIONAL MENTALITY

2019 ◽  
pp. 88-97
Author(s):  
Oleksandr Byrkovych
Keyword(s):  
Scientific Knowledge ◽  
Practical Importance ◽  
Constitutional Court ◽  
State Institutions ◽  
Radical Reform ◽  
Legal Studies ◽  
National Tradition ◽  
Scientific Institutions ◽  
Legal Foundations ◽  
Constitutional Right

Purpose. The purpose of the article is to identify the fundamental values of the Ukrainian people, on the basis of which not only his mentality, but also all national-state institutions, including institutions of justice and justice, as well as to identify trends of influence of these values on the further development of legal foundations of the judiciary and justice of Ukraine. Method. The methodological basis of the study was the combination of principles and methods of scientific knowledge. For the objectivity of the research, a set of general scientific, special-legal, special-historical and philosophical methods of scientific knowledge was used. Results. At the current stage of reforming the institutions of the judiciary and the judiciary, the notion of fair justice, which is formed on the basis of popular national culture, plays an important role. Given the functioning of the modern Constitutional Court of Ukraine, whose representatives are formed by delegation to the Verkhovna Rada of Ukraine, the President of Ukraine, the Cabinet of Ministers of Ukraine and the judiciary, this institution needs radical reform as it has repeatedly made political rather than constitutional decisions. Scientific novelty. Based on the analysis of the national tradition of justice, it is established that the Constitutional Court should be formed by public organizations, which are formed by legal experts. There are several higher scientific institutions in Ukraine which have departments, constitutional law research institutes. Their representatives should delegate the best experts in the constitutional right to competitive selection to fill vacancies in the constitutional court. Practical importance. The results of the study can be used in further historical and legal studies, preparation of special courses.

Building States to Build Peace? A Critical Analysis

2008 ◽  
Vol 4 (2) ◽  
pp. 60-74 ◽  
Author(s):  
Charles T. Call
Keyword(s):  
Critical Analysis ◽  
State Capacity ◽  
International Peace ◽  
State Institutions ◽  
Strong State ◽  
Post Conflict ◽  
Post War ◽  
External Actors ◽  
State Functions

Agencies throughout the development, humanitarian, political and defence fields have recently endorsed the centrality of state institutions in post-war peacebuilding. But how can external actors go about peacebuilding in a way that reinforces effective and legitimate states without doing harm? Drawing on an International Peace Institute project, this article calls into question the assumption that peacebuilding can be boiled down to building state institutions. The article argues that the process of building states can actually undermine peace, postulating five tensions between peacebuilding and statebuilding even as it asserts that strong state institutions remain crucial for consolidating peace. Identifying three crucial state functions for peacebuilding, the article emphasises the complex interrelationships among legitimacy, state capacity and security in post-conflict societies.

scholarly journals KEWENANGAN BADAN PENGAWAS PEMILU DALAM PENANGANAN PELANGGARAN ADMINISTRASI DITINJAU DARI PERSPEKTIF SISTEM PERADILAN INDONESIA

2021 ◽  
Vol 2 (2) ◽  
pp. 74-85
Author(s):  
Alasman Mpesau
Keyword(s):  
Supreme Court ◽  
Descriptive Analysis ◽  
Supervisory Board ◽  
Electoral System ◽  
General Election ◽  
Judicial Power ◽  
Constitutional Court ◽  
State Institutions ◽  
The Supreme Court ◽  
Religious Courts

In the General Election and Regional Head Election Law, the Election Supervisory Board (Bawaslu) has the authority supervisory to each Election stages, it is the center for law enforcement activities of the Election (Sentra Gakkumdu) to criminal acts and carrying out the judicial functions for investigating, examining, and decided on administrative disputes of General Election and Regional Head Election.  With the Bawaslu’s authority then placed as a super-body institution in the ranks of the Election Management Body, due to its essential role in building a clean and credible electoral system, it also has potential for abuse of power within it. In Law no. 48 of 2009 concerning Judicial Power has defined state institutions that have the authority to administrate judicial functions. These are the Supreme Court and Judicial Bodies that under its lines of general court, Religious Courts, Military Courts, Administrative Court (PTUN) and the Constitutional Court. The research method is normative juridical, that focuses on the analysis of the laws and regulations on General Election, Regional Head Elections and the Law on Judicial Power. The analytical tool is descriptive analysis, by describing the main issues, an analysis is carried out that was supported by case-approach related to the research. The study concludes that Bawaslu in carrying out judicial functions in its position as a semi-judicial institution has not a hierarchical relationship to the Supreme Court (MA) and the Constitutional Court (MK); however, what does exist is functional relationship.

scholarly journals Yudisialisasi Politik dan Sikap Menahan Diri: Peran Mahkamah Konstitusi dalam Menguji Undang-Undang

2016 ◽  
Vol 12 (3) ◽  
pp. 473
Author(s):  
Bisariyadi Bisariyadi
Keyword(s):  
Policy Making ◽  
Constitutional Court ◽  
Theoretical Justification ◽  
Policy Makers ◽  
Aggressive Approach ◽  
Legal Policy ◽  
State Institutions ◽  
Law And Policy ◽  
Executive Discretion ◽  
Judicialization Of Politics

In a review of the constitutionality of law or policy, the Constitutional Court can take an aggressive approach or choose to take self-restraint. Theoretical justification on the Court to change or made policy derived from the judicialization of politics. Global phenomenon indicates the shift of policy-making authority towards the judiciary. Consequently, policy makers shows resistence. Such conditions forced the Court to use a number of strategies to reduce political tensions between state institutions while at the same time the Court still protect the rights of citizens. The Court uses self-restraint approach to examine policies which in realm of legislative or executive discretion. This approach is referred to by the Court as an “open(ed) legal policy”. This study elaborates on the actions carried out by the Indonesian Constitutional Court to test the constitutionality of law or policy, both in the application of the judicialization of politics nor in the judicial restraint approach. In reality, the Court uses both of these approaches on review the constitutionality of law and  policy.

scholarly journals Posner’s Folly: The End of Legal Pragmatism and Coercion’s Clarity

2018 ◽  
Vol 7 (2) ◽  
pp. 365-400
Author(s):  
Joseph D’Agostino
Keyword(s):  
Rule Of Law ◽  
Essential Elements ◽  
Public Confidence ◽  
Moral Legitimacy ◽  
The Rule Of Law ◽  
Positive Law ◽  
Diverse Society ◽  
The Concept Of Law ◽  
Legal Concepts ◽  
Legal Pragmatism

Abstract Highly influential legal scholar and judge Richard Posner, newly retired from the bench, believes that law is irrelevant to most of his judicial decisions as well as to most constitutional decisions of the U.S. Supreme Court. His recent high-profile repudiation of the rule of law, made in statements for the general public, was consistent with what he and others have been saying to legal audiences for decades. Legal pragmatism has reached its end in abandoning all the restraints of law. Posner-endorsed “epistemological democracy” obscures a discretion that is much worse than the rule of law promoted by epistemological authoritarianism. I argue that a focus on conceptual essentialism and on the recognition of coercive intent as essential to the concept of law, both currently unpopular among legal theorists and many jurists, can clarify legal understandings and serve as starting points for the restoration of the rule of law. A much more precise, scientific approach to legal concepts is required in order to best ensure the rational and moral legitimacy of law and to combat eroding public confidence in political and legal institutions, especially in an increasingly diverse society. The rational regulation by some (lawmakers) of the real-world actions of others (ordinary citizens) requires that core or central instances of concepts have essential elements rather than be “democratic.” Although legal pragmatism has failed just as liberal theory generally has failed, the pragmatic value of different conceptual approaches is, in fact, the best measure of their worth. Without essentialism in concept formation and an emphasis on coercion, the abilities to understand and communicate effectively about the practical legal world are impaired. Non-essentialism grants too much unwarranted discretion to judges and other legal authorities, and thus undermines the rule of law. Non-essentialist or anti-essentialist conceptual approaches allow legal concepts to take on characteristics appropriate to religious and literary concepts, which leads to vague and self-contradictory legal concepts that incoherently and deceptively absorb disparate elements that are best kept independent in order to maximize law’s rationality and moral legitimacy. When made essentialist, the concept of political positive law shrinks, clarifies, and reveals its true features, including the physically-coercive nature of all laws and the valuable method of tracing the content of law by following its coercive intents and effects.

scholarly journals Measuring the independence of audit oversight entities: a comparative empirical analysis

2017 ◽  
Vol 30 (2) ◽  
pp. 165-184 ◽  
Author(s):  
Lukas Loehlein
Keyword(s):  
Financial Reporting ◽  
Policy Research ◽  
Essential Elements ◽  
Future Research ◽  
Public Confidence ◽  
Content Type ◽  
Legal Provisions ◽  
Accounting Scandals ◽  
Independent Audit

Purpose Independent audit oversight is a prerequisite for restoring public confidence in financial reporting and auditing after the past accounting scandals and the financial crisis. By analysing and comparing the independence of the audit oversight boards of 27 European Member States and the USA, this study aims to provide insights into the question of how independent “independent” audit oversight boards are. Design/methodology/approach Independence is measured in terms of the organisational compositions and regulatory competences of the audit oversight authorities. The data were collected through an e-mail questionnaire that was sent to all European oversight authorities, and by analysing legal provisions of various regulators. The results are analysed and visualised by a Partial Order Scalogram Analysis with Coordinates, which allows conclusions about the similarities of various systems and their relative levels of independence. Both measurements are then equally combined into one value of material independence, which is used to rank the oversight authorities. Findings Although all countries encounter similar pressures to establish profession-independent oversight systems, this study identifies how differently “independence” has been translated in regulatory outcomes. While all countries claim to possess formal independent oversight bodies, there is a visible gap between countries with comparatively strong independent oversight authorities and systems in which accounting bodies still maintain far-reaching regulatory influence. At the same time, the results question the role of the Public Company Accounting Oversight Board (PCAOB) as the globally perceived benchmark of an entirely independent regulator. Research limitations/implications This study focuses on formal independence rather than de-facto independence. Future research has, therefore, to address how these formal arrangements have evolved in regulatory practice. Practical implications Policy makers around the world perceive independent oversight as one of the essential elements of regulatory reforms aiming at restoring public confidence in the aftermath of past accounting scandals. This study enables the comparison and benchmarking of national specific regulatory designs with other forms of independent oversight. Originality/value Although the role of independent regulation is a recurring theme in accounting research, a systematic and encompassing comparison of the intertwining of audit oversight authorities and the accounting profession has not yet been provided. This study takes a first step towards providing a quantifiable measure of the formal independence of audit oversight authorities by mobilizing concepts, methods and prior findings from the field of public policy research.

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 Italian Constitutional Court

2020 ◽  
pp. 447-504
Author(s):  
Raffaele Bifulco ◽  
Davide Paris
Keyword(s):  
Constitutional Court ◽  
Ongoing Process ◽  
Constitutional Justice

This chapter looks at the origins, history, and present-day status of the Italian Constitutional Court. It argues that the theme of the Italian constitutional jurisdiction’s Europeanization and internationalization relies on two premises. First, the indispensable interaction between the Constitutional Court, the ECJ, and the ECtHR shakes the premises and foundations of the centralized review of legislation. Second, the process of Europeanization and internationalization of constitutional justice is an ongoing process that is far from having reached a stable end. Today, the chapter shows how the Court seems to have embarked on a new ‘path’ of European multi-tier constitutionalism. Although the path’s end is neither in sight today nor devoid of contradictions, three possible scenarios regarding Italian constitutional jurisdiction emerge from the current jurisprudence of the Court.

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