scholarly journals Gagasan Pembentukan Peradilan Khusus Pilkada Dalam Mewujudkan Electoral Justice

2021 ◽  
Vol 24 (01) ◽  
pp. 14-24
Author(s):  
Surya Mukti Pratama ◽  
Ela Nurlela ◽  
Hendry Gian Dynantheo Sitepu
Keyword(s):  
Supreme Court ◽  
General Election ◽  
Constitutional Court ◽  
The Supreme Court ◽  
The Status ◽  
Election System ◽  
The Law ◽  
Election Results ◽  
Regional Elections

General Election and Regional Election are two different things on a constitutional basis. Then it was strengthened and confirmed by the decision of the Constitutional Court No. 97 / PUU / XI / 2013. This condition encourages the author to discuss the urgency of establishing a special election court with a simultaneous regional election system and a special court format that is effective in realizing electoral justice. This article aims to discuss the problems faced in resolving regional election results disputes in order to realize electoral justice in regional elections. The juridical formation of a special regional elections judicial body is an urgent need because it is a mandate of the law that must be implemented. The regional elections court format in realizing electoral justice includes three important principles that must be possessed by the regional elections court, the status and position of the regional elections court, the regional elections court judges, the role of the Supreme Court as judex juris and is attributed the authority to review the decision of the regional elections special court and relate to absolute competence. from the regional elections court.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

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 Pergeseran Rezim Sistem Pemilihan Kepala Daerah di Indonesia

2020 ◽  
Vol 21 (3) ◽  
pp. 361-376
Author(s):  
Ahmad Mirza Safwandy ◽  
Husni Jalil ◽  
Moh Nur Rasyid
Keyword(s):  
Supreme Court ◽  
Dispute Resolution ◽  
Constitutional Court ◽  
Regional Government ◽  
Resolution System ◽  
The Supreme Court ◽  
Election System ◽  
Electoral Regime ◽  
Election Fraud ◽  
Dispute Resolution System

Penelitian ini bertujuan menguraikan pergeseran sistem pemilihan kepala daerah dari rezim pemilihan umum ke rezim Pemerintahan Daerah. Pergeseran ini berdampak kepada peralihan kewenangan penyelesaian sengketa dari Mahkamah Konstitusi ke Mahkamah Agung sebagai konsekuensi Putusan MK Nomor 97/PUU–XI/2013. Putusan MK berimpilikasi kepada sistem pemilihan kepala daerah (Pilkada) yang berada di rezim pemilihan umum beralih ke rezim pemerintahan daerah, setelah putusan tersebut undang-undang mengamanatkan pembentukan peradilan khusus Pilkada yang berada di bawah kekuasaan Mahkamah Agung. Penelitian ini menggunakan pendekatan yuridis normatif dengan bertumpu pada studi dokumen berupa bahan hukum. Penelitian menyimpulkan bahwa meski tidak lagi menjadi kewenangan MK untuk mengadili perkara Pilkada, MK masih mengadili sengketa Pilkada hingga peradilan khusus Pilkada terbentuk. Peradilan khusus Pilkada selain mengadili sengketa hasil dapat mengadili sengketa proses, terkait sengketa administrasi Pilkada, sengketa Pidana Pilkada termasuk mengadili perihal election fraud dan corrupt campaign practice. Sistem penyelesaian sengketa Pilkada dilakukan melalui satu atap, sehingga tidak terjadi tumpang tindih putusan seperti yang terjadi selama ini. Shifting of Regime on Regional  Election System in Indonesia This study aims to describe the shift of the regional election system from the general election regime to the regional district regime. The shift has an impact on the tranfer of authority to resolve disputes from Constitutional Court to Supreme Court as a consequence of the Constitutional Court Decision Number 97/PUU-XI/2013. The decision implied to the regional election system (Pilkada) which was in the electoral regime moved to the regional government regime, after the ruling mandated the establishment of a special election court under the authority of the Supreme Court. This research uses a normative juridical approach by analyzing law documents. The research concluded that although adjudicating of regional election disputes was no longer under the jurisdiction of the Constitutional Court, but the Court still adjudicate election disputes until a special court was formed. In addition to adjudicating disputes over results, the Election Special Court can also adjudicate election disputes related to process, administrative, criminal disputes including hearing about election fraud and corrupt campaign practice. Pilkada dispute resolution system is done through one roof, so there is no overlapping of decisions as has happened so far. 

scholarly journals Uloga institucije ombudsmena i sudova u sudskim postupcima povodom slučajeva diskriminacije u Bosni i Hercegovini

2019 ◽  
Vol 56 (3) ◽  
pp. 667-683
Author(s):  
Mirza Čaušević
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Bosnia And Herzegovina ◽  
General Information ◽  
Direct Discrimination ◽  
The Supreme Court ◽  
The Law ◽  
Court Proceedings ◽  
The Individual

When reading the article’s title, it is important to emphasize the role and importance of the Institution of the Ombudsman for Human Rights of Bosnia and Herzegovina, the most important national institution for the protection of human rights and fundamental freedoms. Consequently, according to the logic of thinking, it can be clearly concluded that the most important segment of action, above mentioned national institution, is to prevent or eliminate all forms of indirect and direct discrimination. Accordingly, the author decided, in addition to introductory and concluding considerations, to divide the article into four (4) parts. The first part of the article entitled “Theoretical Determination of Discrimination” provides general information on the concept, different forms and types of discrimination in accordance with the Law on Prohibition of Discrimination in Bosnia and Herzegovina. Unlike the first, in the second part of the article “The Role of the Ombudsman in the Probation of Discrimination Proceedings”, the Ombudsman aims to present the legal position of the ombudsman in court proceedings, with the mandatory indication of the conditions for initiating the proceedings on his own behalf, representing the individual and intervening in the ongoing proceedings. Through practical examples, the author seeks to emphasize the importance, role and importance of the ombudsman in court proceedings. Subsequently, in the third part of the “Role of Courts in the Probation of Discrimination Proceedings”, the author concentrates that, by using the Law on Prohibition of Discrimination, he presents court judgments that discriminate the education system of the Central Bosnia and Herzegovina Canton (non) discriminatory on the basis of the existing segregation in so called. “Two schools under one roof”. Thus, this section primarily analyzes the rejection of the aforementioned claims. Finally, in the fourth (working) section entitled “The Probation of Discrimination Proceeding before the Supreme Court of the Federation of Bosnia and Herzegovina”, the author presents positive and negative examples in the work of the Supreme Court of FBiH, and above all clarifies the process of proving discrimination before this court instance. The aim of this paper is to investigate the legal background of the Institution of the Ombudsman for Human Rights in Bosnia and Herzegovina, as well as judicial instances from the aspect of domestic (national) law, while, on the other hand, special attention is devoted to the actions of the FBiH Supreme Court in cases of discrimination.

scholarly journals MODEL PENGUJIAN PERATURAN PERUNDANG-UNDANGAN SATU ATAP MELALUI MAHKAMAH KONSTITUSI

2018 ◽  
Vol 25 (2) ◽  
pp. 247
Author(s):  
Sholahuddin Al-Fatih
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Constitutional Court ◽  
Regulatory Testing ◽  
The Supreme Court ◽  
New Ideas ◽  
The Republic ◽  
Bureaucratic Reform

Post-reform of the role of judicial institution is run by two institutions namely the Supreme Court and the Constitutional Court. The duties and authorities of the two institutions are regulated in the Constitution of the Republic of Indonesia 1945 and the act that addresses the three institutions more specifically. Several powers possessed by the Supreme Court and the Constitutional Court, one of them is the authority to judicial review. The Constitutional Court is authorized to review the act on the Constitution of the Republic of Indonesia 1945, while the Supreme Court is authorized to review under the Act on the above legislation.The unfairness of the regulatory testing function is feared to trigger bureaucratic inefficiency. Based on data released by the Supreme Court Clerk, it was recorded during 2016 that the Supreme Court received 18,514 cases, including the Hak Uji Materi (HUM) subject to legislation under the Act. While the number of cases of judicial review of the Constitutional Court in 2016-2017 amounted to only 332 cases. Therefore, it is necessary to conduct a bureaucratic reform and provide new ideas related to the model of one court of judicial review in Indonesia. So that in this paper will be discussed deeply about problematic of judicial review in Indonesia and the authority of the Constitutional Court to review the act under one roof with SIJURI mechanism.

scholarly journals Takamore v Clarke: Tikanga and Merits-Based Resolution of Burial Disputes, a Just Outcome?

2021 ◽  
Author(s):  
◽  
Matthew Webb
Keyword(s):  
New Zealand ◽  
Cultural Identity ◽  
Supreme Court ◽  
General Application ◽  
The Supreme Court ◽  
The Law ◽  
Court Intervention

<p>Burial disputes are something of a novelty in New Zealand. Most are resolved amicably by those with ties to the deceased. The exception to has been the long-running case of Takamore v Clarke, the matter finally being resolved by the Supreme Court this year. Burial disputes raise fundamental issues of religious and cultural identity (including tikanga Māori), personhood, and the meaning of family. Despite their rarity in New Zealand, the response of the law in resolving such disputes should “fit the fuss”, having regard to the context in which they arise. This essay begins by discussing the form of resolution advocated for by the majority and minority in Takamore. Their respective approaches are essentially the same, especially with regards to tikanga Māori. This is one of Court intervention coupled with a merits-based assessment of the dispute. However the Court failed to apprehend there was no pressing need for burial, prior to creating a solution of general application. The experience of comparable jurisdictions, where speedy resolution has been necessary (such as Australia) demonstrates that the role of the Court applying such a test in burial disputes is misconceived. Rather than providing “justice” for the parties concerned, merits-based resolution produces unfair and unconvincing outcomes. The more just response is to ensure the parties never get to Court, via mediation. Insofar as agreement is not possible, the role of the Court should be supervisory in the application of a prescriptive test emphasising expediency and ensuring the dispute is resolved out of Court.</p>

scholarly journals Implikasi Putusan Mahkamah Konstitusi Terhadap Pembubaran Partai Politik Di Indonesia

2018 ◽  
Vol 4 (2) ◽  
pp. 227-239
Author(s):  
Hasir Budiman Ritonga
Keyword(s):  
Political Parties ◽  
Supreme Court ◽  
Legal Status ◽  
Judicial Power ◽  
Constitutional Court ◽  
The Supreme Court ◽  
The Status ◽  
Party Members ◽  
The Republic

Judicial power in Indonesia under the 1945 Constitution of the Republic of Indonesia shall be exercised by the Supreme Court and the Constitutional Court. One of the authority of the Constitutional Court according to the 1945 Constitution of the Republic of Indonesia is to decide the dissolution of political parties. The facts in the current Indonesian system of ketatanegaran no cases of political parties that were dissolved through the decision of the Constitutional Court, it's just that the problem is when the Constitutional Court uses its authority to break the dissolution of political parties there are things that are formal juridically there is no clear rules, such as the legal status of party members who are not directly involved in the violation committed by the party and the status of party members who hold the position of members of the legislature both at the center and in the regions. So for that must be resolved by emphasizing the certainty, justice and benefit in the decision of the constitutional court

scholarly journals The Practice of Introducing Restrictions on the Right to Freedom of Peaceful Assembly within Administrative Proceedings and the Place of the Judicial Branch of Power in Determining the Admissibility of Such Restrictions

2020 ◽  
Vol 90 (3) ◽  
pp. 162-176
Author(s):  
М. А. Самбор
Keyword(s):  
Supreme Court ◽  
Executive Branch ◽  
Constitutional Court ◽  
Administrative Discretion ◽  
The Supreme Court ◽  
Executive Agencies ◽  
Administrative Proceedings ◽  
The Right ◽  
Legal Understanding

The author has researched the practice of the executive branch of power of Ukraine in establishing a collective (general) ban and restriction of the right to freedom of peaceful assembly under quarantine, as well as the place and role of the judicial branch of power represented by the Supreme Court and the Constitutional Court of Ukraine in determining the constitutionality of such restrictions and prohibitions. The powers of the Supreme Court on the constitutional submission to the Constitutional Court of Ukraine on the constitutionality of the Resolution of the Cabinet of Ministers of Ukraine “On quarantine to prevent the spread of acute respiratory disease COVID-19 caused by coronavirus SARS-CoV-2 and stages of weakening of anti-epidemic measures” dated from May 20, 2020 No. 392 on the establishment of a ban on the exercise of the right to freedom of peaceful assembly within administrative proceedings during the introduction of quarantine in Ukraine, as well as the justification of such a constitutional submission. It is important to analyze and form a legal understanding of the Decision of the Constitutional Court of Ukraine on the unconstitutionality of restricting and prohibiting the exercise of the right to freedom of peaceful assembly during quarantine within administrative proceedings – by adopting the relevant resolution by the Cabinet of Ministers of Ukraine, which was the result of administrative discretion of the highest agency in the system of executive agencies of Ukraine. In this regard, the study focuses on the motivation and validity of the decision of the agency of constitutional jurisdiction and understanding of those legal and social values that were the basis for the judges of the Constitutional Court of Ukraine while adopting the decision dated from August 28, 2020 No 10-r/2020.

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