MEMPERTEGAS KEDUDUKAN HUKUM KESATUAN MASYARAKAT HUKUM ADAT DALAM MEMENUHI HAK- HAK KONSTITUSIONAL

2020 ◽  
Vol 10 (1) ◽  
pp. 73
Author(s):  
Aullia Vivi Yulianingrum
Keyword(s):  
Constitutional Rights

Keberadaan dan hak-hak masyarakat hukum adat telah diterima dalam kerangka hukum tidak tertulis maupun hokum positif di Indonesia. Pada kenyataannya issue yang berkembang tentang kehadiran dan hak- hak masyrakat hukum adat adalah terbatasnya ruang dan gerak bagi komunitas-komunitas adat dalam mewujudkan demokratisasi pengelolaan wilayah adanya secara berkelanjutan, Konflik tenurial, keterbatasan dan kondisi kekayaan alam yang meliputi tanah dan kekayaan alam yang terkandung di dalamnya tidak asimetris dengan pertambahan penduduk. Sehingga perlu adanya  penegasan kembali bahwa adanya korelasi antara Kesatuan Masyarakat Adat dengan Pemerintah terkait pemenuhan  hak Konstitusionalnya yang terkandung dalam pasal Pasal 18B ayat (2), Pasal 28I ayat (3) dan Pasal 32 ayat (1) dan ayat (2) UUD NRI 1945  dimana aturan ini merupakan semangat otonomi yang diberikan seluas-luasnya kepada daerah. Ketentuan tersebut yang paling sering dirujuk ketika membicarakan mengenai keberadaan dan hak-hak masyarakat hukum adat. Kehadiran Mahkamah Konstitusi sebagai The Protector of the citizen’s and Constitutional Rights and guardian of constitution juga memberikan secercah harapan bagi para pencari keadilan khususnya yang berkaitan dengan perlindungan terhadap hak masyarakat hukum adat

Involuntary Circumcision of Males in Illegal Initiation Schools in South Africa: A Violation of African Customary Human Rights?

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Porsche Makama
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Cultural Beliefs ◽  
Young Men ◽  
Cultural Tradition ◽  
Constitutional Rights ◽  
Topical Issue ◽  
Community Members ◽  
Human Right ◽  
Traditional Practice

The incidence of deaths associated with the practice of forced and botched circumcisions at initiation schools has become a topical issue in South Africa. In recent times, the number of deaths and injuries among initiates has risen at an alarming rate, most of them occurring at illegal initiation schools. The continuous rise in the number of injuries among initiates at these schools has elicited mixed reactions among community members, some referring to it as genocide in the case of fatalities and calling for its abandonment, while others argue that this traditional practice should be allowed to continue. The majority of young men who go to initiation schools do not make the decision on their own, nor do they have a choice in the matter. Instead they are compelled by parents or guardians, influenced by friends, and also coerced by others in the community who insist that they have to ‘go to the mountain’, as initiation schools are generally referred to in South Africa. It has been argued by those against circumcision that this practice infringes constitutional rights and contravenes the Children’s Act 38 of 2005. There have been numerous instances where young and even mature males have been taken from the streets, or even from the comfort of their homes, and forced into circumcision camps with or without their consent. This begs the question whether the continued practice of a cultural tradition that violates the fundamental human right and freedom to choose religious and cultural beliefs is justifiable.

Dangerous Warrants

2017 ◽  
Author(s):  
Nirej Sekhon
Keyword(s):  
Supreme Court ◽  
Fourth Amendment ◽  
Constitutional Rights ◽  
Police Discretion ◽  
Accurate Identification ◽  
Race And Class ◽  
The Supreme Court ◽  
Local Courts ◽  
State And Local ◽  
Municipal Court

The Supreme Court has cast judicial warrants as the Fourth Amendment gold standard for regulating police discretion. It has embraced a "warrant preference" on the premise that requiring police to obtain advance judicial approval for searches and seizures encourages accurate identification of evidence and suspects while minimizing interference with constitutional rights. The Court and commentators have overlooked the fact that most outstanding warrants do none of these things. Most outstanding warrants are what this article terms "non-compliance warrants": summarily issued arrest warrants for failures to comply with a court or police order. State and local courts are profligate in issuing such warrants for minor offenses. For example, the Department of Justice found that the municipal court in Ferguson, Missouri issued one warrant for every two of its residents. When issued as wantonly as this, warrants are dangerous because they generate police discretion rather than restrain it. Nonetheless, the Supreme Court has, most recently in Utah v. Strieff, treated non-compliance warrants as if no different from the traditional warrants that gave rise to the Fourth Amendment warrant preference. This article argues that non-compliance warrants pose unique dangers, constitutional and otherwise. Non-compliance warrants create powerful incentives for the police to conduct unconstitutional stops, particularly in poor and minority neighborhoods. Their enforcement also generates race and class feedback loops. Outstanding warrants beget arrests and arrests beget more warrants. Over time, this dynamic amplifies race and class disparities in criminal justice. The article concludes by prescribing a Fourth Amendment remedy to deter unconstitutional warrant checks. More importantly, the article identifies steps state and local courts might take to stem the continued proliferation of non-compliance warrants.

The Case for Muslim Constitutional Interpretive Activity

1990 ◽  
Vol 7 (1) ◽  
pp. 69-75
Author(s):  
Kathleen Moore
Keyword(s):  
African American ◽  
Substantial Contribution ◽  
Constitutional Rights ◽  
Religious Groups ◽  
Racial Hatred ◽  
Special Diet ◽  
Court Record ◽  
Religious Associations ◽  
Islamic Faith ◽  
The Right

Muslim Involvement: The Court Record 1.Prisoners' RightsCan we rely upon the courts to protect Islam and Muslims from discriminatory treatment? Have the courts considered Islam to be a 'religion' worthy of constitutional protection? The issue of First Amendment protection of Muslim beliefs and practices has arisen most often in cases brought by African-American Muslims who are incarcerated. In fact, the area of law to which Muslims have made their most substantial contribution to date is the area of prisoners' rights litigation. African-American Muslim inmates have been responsible for establishing prisoners' constitutional rights to worship. Cases brought by Muslims have established that prisoners have the right to assemble for religious services; to consult a cleric of their faith; to possess religious publications and to subscribe to religious literature; to wear unobstrusive religious symbols such as medallions; to have prepared a special diet required by their religion; and to correspond with their spiritual leaders. The court record demonstrates that Muslim inmates' religious liberty claims, challenging prison regulations that impinge on the free exercise of the Islamic faith, have been accepted only under certain circumstances. In brief, the responsiveness of the courts to Muslim inmates' claims has turned on a number of factors including: (1) the issue of equality of treatment of all religious groups in prison; (2) the courts' reticence to reverse the decisions of prison officials; (3) the degree to which the inmates' challenges would undermine the fundamental interests of the state (e.g. in prison security and administrative efficiency); and (4) the showing that Islam is parallel in significant ways to the conventional Protestant, Catholic, and Jewish faiths.Constitutional protection of Islamic practices in prison and elsewhere, however, has not been automatic. Many Muslim organizations, the Nation of Islam in particular, have been treated as cults, or suspect and dangerous groups, due in part to the perception that Muslims teach racial hatred, and have not been regarded in the same respect as 'mainline' religious groups. It has been argued before the courts that Muslim doctrine contains political aspirations and economic goals as well as racial prejudice and should be suppressed in the interest of society. The gist of this argument is that certain Muslim groups are primarily political and not religious associations and thus ...

Sign in / Sign up

Export Citation Format

Share Document