scholarly journals LAWSUIT IN ADMINISTRATIVE COURT AFTER ADMINISTRATIVE PROCEEDINGS BASED ON PERMA NO. 6 OF 2018

2019 ◽  
Vol 8 (3) ◽  
pp. 458
Author(s):  
Muhammad Adiguna Bimasakti
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Government Administration ◽  
The Supreme Court ◽  
Administrative Proceedings

The enactment of Law No. 30 of 2014 concerning Government Administration very much changes the paradigm of the proceedings in the State Administrative Court. One of the fundamental things is about administrative proceedings as pre-litigation proceedings. Under Article 75 of Law No. 30 of 2014 concerning Government Administration, citizens who feel disadvantaged by a Government’s Decision or Action can file an administrative proceedings, and then file a lawsuit in the Administrative Court. Regarding this regulation, two interpretations arise regarding the obligation of administrative proceedings as pre-litigation proceedings. One party argues that the administrative proceedings as pre-litigation proceedings must be carried out before filing a lawsuit in the Court, and the other argues this is not mandatory. For a period of four years, the interpretation of the obligation of administrative proceedings as a pre-litigation proceedings in Law No. 30 of 2014 concerning Government Administration is floating in the realm of discourse. It was only on December 4th, 2018 that the Supreme Court issued a Supreme Court Regulation (PERMA) No. 6 of 2018 concerning Guidelines for Resolving Disputes Regarding Government Administration After Administrative Proceedings, finally the Supreme Court dictates that administrative proceedings as a pre-litigation proceedings is a must. However, the PERMA does not regulate fundamental things regarding lawsuit after administrative proceedings, namely, who will be seated as the defendant, and what is the object of the lawsuit. In addition, there are also a number of things that needed to be reviewed regarding the arrangements in the PERMA, such as regarding the deadline for a lawsuit in the Court.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

The Reckoning

2021 ◽  
pp. 483-520
Author(s):  
Eric Van Young
Keyword(s):  
Supreme Court ◽  
Mexico City ◽  
The State ◽  
The Other ◽  
Grand Jury ◽  
The Supreme Court ◽  
The Government ◽  
The U.S

Alamán’s internal self-exile in Mexico City, when he hid for nearly two years only to emerge in 1834, is discussed in as much detail as is possible for a largely undocumented episode. Having left the government along with the other ministers during 1832, he was being pursued by agents of the state and political enemies to stand trial before a congressional grand jury for his involvement in the judicial murder of Vicente Guerrero. The chapter also discusses his cordial relationship with the U.S. envoy who replaced the recalled Joel Poinsett, Anthony Butler. The fall of the Anastasio Bustamante government to an uprising led by Santa Anna is narrated, along with Alamán’s eventual trial, his spirited defense of himself, the intervention of Carlos María de Bustamante (not the president) on his behalf before the Supreme Court, and the ex-minister’s exoneration at the hands of President Santa Anna.

Scandalizing the judiciary: An analysis of the uneven response of the Supreme Court of India to sexual harassment allegations against judges

2020 ◽  
Vol 18 (2) ◽  
pp. 563-590
Author(s):  
Sanjay Jain ◽  
Saranya Mishra
Keyword(s):  
Sexual Harassment ◽  
Supreme Court ◽  
The State ◽  
Fundamental Rights ◽  
The Other ◽  
Lower Court ◽  
High Courts ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Systematic Pattern

Abstract The Supreme Court of India (SC) pronounced a momentous judgment in Vishaka v. State of Rajasthan in 1997, categorically recognizing the menace of sexual harassment (SH) at workplace and constitutionally rendering it as being in violation of fundamental rights guaranteed by Articles 15, 19, and 21 of the Constitution of India 1950. The Court also provided a mechanism for redressal against SH, which was ultimately reinforced by Parliament with the enactment of Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act 2013 (POSH Act). However, when it comes to allegations of SH against judges in the SC and High Courts by its employees, interns, or lower court judges, the response of the SC has been abysmal to say the least. There is a systematic pattern to suggest foul play and conspiracy in each such allegation, and judges, including even the Chief Justice of India (CJI), have not hesitated to openly indulge in victim-shaming and-blaming. In other words, the court has not been able to uphold its own jurisprudence on sexual harassment, which it expects to be scrupulously adhered to by other organs of the state. It is submitted that in not supporting the cause of victims alleging SH against judges, the other organs of the state are also party to this constitutional decay and serious infraction of fundamental rights. It leads us to ask the question, how can we guard against the guardians?

scholarly journals Expansion of the Objects of State Administrative Disputes after the Enactment of Law Number 30 of 2014 Concerning Government Administration and Supreme Court Regulation Number 2 of 2019 Concerning Guidelines for the Resolution and Authority to Adjudicate Unlawful Conducts by Government Agencies or Officials (Onrechtmatige Overheidsdaad / OOD)

2021 ◽  
Vol 8 (1) ◽  
pp. 383
Author(s):  
Sonyendah Retnaningsih ◽  
Disriani Latifah Soroinda Nasution ◽  
Heryna Oktaviani ◽  
Muhammad Rizqi Alfarizi Ramadhan
Keyword(s):  
Supreme Court ◽  
Dispute Resolution ◽  
Secondary Data ◽  
The State ◽  
Government Agencies ◽  
Government Action ◽  
Government Administration ◽  
State Administration ◽  
The Supreme Court ◽  
The Government

Historically, State Administrative Court (PTUN) has existed since 1986, with the enactment of Law Number 5 of 1986 concerning State Administrative Court which currently has been amended by Law Number 9 of 2004 concerning Amendment to Law Number 5 of 1986 concerning State Administrative Court and amended again by Law Number 51 of 2009 concerning the Second Amendment to Law Number 5 of 1986 concerning State Administrative Court. The role of the Administrative Court according to the explanation of the law, the PTUN functions as a control or supervisory agency thus legal actions from government officials do not deviate, in addition to protecting the rights of citizens from the actions of officials who abuse their authority or act arbitrarily. Currently, the object of dispute and can be sued at the State Administrative Court is only a State Administration decision reduced by the exceptions stipulated in Article 2 and Article 49 of the PTUN Law. The provisions of Article 3 of the Administrative Court Law No. 5 of 1986 on negative fictitious could potentially no longer be enforced since the enactment of Article 53 of the AP Law which stipulates positive fictitious. Since the promulgation of Law Number 30 of 2014 concerning Government Administration (hereinafter referred to as AP Law) on 17 October 2014, there has been a change in the legal criteria from the government written stipulation (beschikkingen) which was initially restrictive and can be sued to the PTUN, yet it has recently become extensive (which was originally mere beschkking, currently it almost covers all variations of besluiten). With the enactment of the AP Law, there will be an expansion of absolute competence and objects of state administration disputes, as stipulated in Article 87 of the AP Law which includes: first, Government Administration Decrees, as stipulated in Article 1 point 7 of the AP Law; second, Government Administration Actions Based on Article 1 point 8 of the AP Law. Furthermore, with the enactment of the Supreme Court Regulation Number 2 of 2019 concerning Guidelines for Government Action Dispute Resolution and the Authority to Adjudicate Unlawful Conducts by Government Agencies and/or Officials (onrechtmatige overheidsdaad / OOD), the judicial power shall transfer from the General Court to the State Administrative Court. This crucial matter continues to be the groundwork and reason for conducting the current research entitled the expansion of the state administration dispute object after the enactment of Law Number 30 of 2014 concerning Government Administration and the supreme court regulation (Perma) Number 2 of 2019 concerning Guidelines for Government Action Dispute Resolution and Authority to Adjudicate Unlawful Conducts by the Government Agencies and/or Officials (onrechtmatige overheidsdaad / OOD). Conducted through normative juridical research method, this research-based paper examined the interviews through judges at PTUN Jakarta and Bandung and the main data source within this qualitative analysis serves as the secondary data or literature data.

Canons of Evasion in Constitutional Criminal Law

2017 ◽  
Author(s):  
Sharon Dolovich
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Judicial Review ◽  
The State ◽  
The Other ◽  
State Action ◽  
The Supreme Court ◽  
The Face ◽  
The One ◽  
The Right

In this chapter, Sharon Dolovich argues that the Supreme Court deploys three “canons of evasion” that undermine core constitutional principles: deference, presumption, and question substitution. The chapter shows how the Court on the one hand affirms basic constitutional principles—such as the right to counsel or the right against cruel and unusual punishment—that courts are to enforce against the state for the protection of individual penal subjects. Yet on the other hand, the doctrinal maneuvers of deference, presumption, and substitute question encourage judges in individual cases to affirm the constitutionality of state action even in the face of seemingly egregious facts. As a result, judicial review delivers almost automatic and uncritical validation of whatever state action produced the challenged conviction, sentence, or punishment. Dolovich identifies troubling questions raised by pervasive use of these canons for the legitimacy of the state’s penal power.

scholarly journals YTTRANDEFRIHET: Om rättigheter som politik och kulturell praktik

2008 ◽  
Author(s):  
Ulf Johansson Dahre
Keyword(s):  
Supreme Court ◽  
Free Speech ◽  
Hate Speech ◽  
Democratic Society ◽  
The State ◽  
The Other ◽  
Freedom Of Religion ◽  
Court Cases ◽  
The Supreme Court ◽  
The Church

The principle of free speech is considered fundamental for the democratic society. Free speech is a non-partisan principle that serves and favours no one. However, two recent controversial court cases in the Swedish Supreme Court show that the neutral free speech principle does not exist. The Supreme Court argued, in spite of the presumed neutrality of who says what, that it does matter who says what. The two cases concerned hate speeches against homosexuals. In the case against the speech of the church cleric, the court argued that freedom of religion is more fundamental than free speech and thus considered the disdain of homosexuals within the confi nes of the law. In the other case concerning the hate speech by a Nazi-nationalistic group, the same court argued that this was illegitimate speech. The speeches were similar in content. The conclusion from this might be that there is no such thing as free speech. The free speech arena is just a battlefi eld where different ideas and ideologies are competing for political and cultural hegemony in the state. Law, moreover, is an expression of the court’s defi nition of the cultural content in society.  

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

PERSINGGUNGAN KEWENANGAN MENGADILI PENYALAHGUNAAN DISKRESI ANTARA PENGADILAN TUN DAN PENGADILAN TIPIKOR / INTERCEPTION OF JUSTICE AUTHORITY OF DISCRETION ABUSE BETWEEN ADMINISTRATION COURT AND CORRUPTION COURTS

2018 ◽  
Vol 7 (2) ◽  
pp. 213
Author(s):  
Budi Suhariyanto
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Administrative Law ◽  
The State ◽  
Government Officials ◽  
Criminal Process ◽  
The Supreme Court ◽  
State Finance ◽  
The Law ◽  
To Receive

Diskresi sebagai wewenang bebas, keberadaannya rentan akan disalahgunakan. Penyalahgunaan diskresi yang berimplikasi merugikan keuangan negara dapat dituntutkan pertanggungjawabannya secara hukum administrasi maupun hukum pidana. Mengingat selama ini peraturan perundang-undangan tentang pemberantasan tindak pidana korupsi tidak merumuskan secara rinci yang dimaksudkan unsur menyalahgunakan kewenangan maka para hakim menggunakan konsep penyalahgunaan wewenang dari hukum administrasi. Problema muncul saat diberlakukannya Undang-Undang Nomor 30 Tahun 2014 dimana telah memicu persinggungan dalam hal kewenangan mengadili penyalahgunaan wewenang (termasuk diskresi) antara Pengadilan Tata Usaha Negara dengan Pengadilan Tindak Pidana Korupsi. Pada perkembangannya, persinggungan kewenangan mengadili tersebut ditegaskan oleh Peraturan Mahkamah Agung Nomor 4 Tahun 2015 bahwa PTUN berwenang menerima, memeriksa, dan memutus permohonan penilaian ada atau tidak ada penyalahgunaan wewenang (termasuk diskresi) dalam Keputusan dan/atau Tindakan Pejabat Pemerintahan sebelum adanya proses pidana. Sehubungan tidak dijelaskan tentang definisi dan batasan proses pidana yang dimaksud, maka timbul penafsiran yang berbeda. Perlu diadakan kesepakatan bersama dan dituangkan dalam regulasi tentang tapal batas persinggungan yang jelas tanpa meniadakan kewenangan pengujian penyalahgunaan wewenang diskresi pada Pengadilan TUN.Discretion as free authority is vulnerable to being misused. The abuse of discretion implicating the state finance may be prosecuted by both administrative and criminal law. In view of the fact that the law on corruption eradication does not formulate in detail the intended element of authority abuse, the judges use the concept of authority abuse from administrative law. Problems arise when the enactment of Law No. 30 of 2014 triggered an interception in terms of justice/ adjudicate authority on authority abuse (including discretion) between the Administrative Court and Corruption Court. In its development, the interception of justice authority is affirmed by Regulation of the Supreme Court Number 4 of 2015 that the Administrative Court has the authority to receive, examine and decide upon the appeal there is or there is no misuse of authority in the Decision and / or Action of Government Officials prior to the criminal process. That is, shortly before the commencement of the criminal process then that's when the authority of PTUN decides to judge the misuse of authority over the case. In this context, Perma No. 4 of 2015 has imposed restrictions on the authority of the TUN Court in prosecuting the abuse of discretionary authority.

O ENSINO RELIGIOSO EM QUESTÃO

2018 ◽  
Vol 9 (21) ◽  
pp. 459
Author(s):  
Mauro Rocha Baptista
Keyword(s):  
Supreme Court ◽  
Religious Education ◽  
Common Core ◽  
Historical Perspective ◽  
National Curriculum ◽  
The Other ◽  
Federal Constitution ◽  
The Supreme Court ◽  
The Common

Neste artigo analisamos a relação do Ensino Religioso com a sua evolução ao longo do contexto recente do Brasil para compreender a posição do Supremo Tribunal Federal ao considerar a possibilidade do Ensino Religioso confessional. Inicialmente apresentaremos a perspectiva legislativa criada com a constituição de 1988 e seus desdobramentos nas indicações curriculares. Neste contexto é frisado a intenção de incluir o Ensino Religioso na Base Nacional Curricular Comum, o que acabou não acontecendo. A tendência manifesta nas duas primeiras versões da BNCC era de um Ensino Religioso não-confessional. Uma tendência que demarcava a função do Ensino Religioso em debater a religião, mas que não permitia o direcionamento por uma vertente religioso qualquer. Esta posição se mostrava uma evolução da primeira perspectiva histórica mais associada à catequese confessional. Assim como também ultrapassava a interpretação posterior de um ecumenismo interconfessional, que mantinha a superioridade do cristianismo ante as demais religiões. Sendo assim, neste artigo, adotaremos o argumento de que a decisão do STF, de seis votos contra cinco, acaba retrocedendo ante o que nos parecia um caminho muito mais frutífero.Palavras-chave: Ensino Religioso. Supremo Tribunal Federal. Confessional. Interconfessional. Não-confessional.Abstract: On this article, we analyze the relation between Religious education and its evolution along the currently Brazilian context in order to understand the position of the Supreme Court in considering the possibility of a confessional Religious education. Firstly, we are going to present the legislative perspective created with the 1988 Federal Constitution and its impacts in the curricular lines. On this context it was highlighted the intention to include the Religious Education on the Common Core National Curriculum (CCNC), which did not really happened. The tendency manifested in the first two versions of the CCNC was of a non-confessional Religious Education. A tendency that delineated the function of the Religious Education as debating religion, but not giving direction on any religious side. This position was an evolution of the first historical perspective more associated to the confessional catechesis. It also went beyond the former interpretation of an inter-confessional ecumenism, which kept the superiority of the Christianity over the other religions. As such, in this paper we adopt the argument that the decision of the Supreme Court, of six votes against five, is a reversal of what seemed to be a much more productive path on the Religious Education.Keywords: Religious Education. Brazilian Supreme Court. Confessional. Inter-confessional. Non- confessional.Enviado: 23-01-2018 - Aprovado e publicado: 12-2018

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