scholarly journals PENGUATAN PENGATURAN HAK ANAK BERDASARKAN KONSTITUSI DAN PERBANDINGAN KONSTITUSI DIBERBAGAI NEGARA

AN-NISA ◽  
2019 ◽  
Vol 11 (1) ◽  
pp. 372-383
Author(s):  
Ismail Aris
Keyword(s):  
Human Rights ◽  
Child Protection ◽  
The State ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Constitutional Protection ◽  
Rights Of The Child ◽  
The Future ◽  
The Republic ◽  
The Right

This article shows that the constitution or the 1945 Constitution of the Republic of Indonesia can not be regarded as children's constitution which adopts the principles of child protection under the Convention on the Rights of the Child. It also shows that Indonesia is not serious about the theme of child protection discourse such as Ecuador, Egypt, Finland and South Africa in protecting, fulfilling and respecting and explicitly specifying the rights of children in its constitution. Based on the argument above, it is very urgent for Indonesia to do constitutionalism the rights of the child. Based on the principles that adopted by the convention on the right of the child as a solution as an effort to save and protect the rights of the child from negligence and neglect of the State to protect and fulfill the human rights and constitutional rights of the child. The effort of constitutionalism is also considered as a strengthening effort in the formation of legislation in the future as well as the basis or test stone of the Constitutional Court in handling the future judicial review of the Law which violates the norm on the protection of children's rights under the Constitution. In addition, it is urgent for constitutionalism and incorporates the idea of constitutional complaints in the Constitutional Court through the Constitution. Thus, as a basis for constitutional protection of the child if the State has neglect to protect the human rights and constitutional rights of the child by conducting constitutional complaint in the Constitutional Court, in order for the State to fulfill its constitutional obligations which have been regulated under the constitution.

scholarly journals Menyoal Kebebasan Beragama dan Penodaan Agama Di Indonesia

2015 ◽  
Vol 3 (2) ◽  
pp. 195-212
Author(s):  
Yayan Sopyan
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Religious Beliefs ◽  
Freedom Of Expression ◽  
Freedom Of Speech ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Reform Era ◽  
The Republic ◽  
The Right

Abstract: Questioning the Religious Freedom and blasphemy in Indonesia. The presence of the Constitutional Court in the reform era is the strengthening of the foundations of constitutionalism in the Constitution of the Republic of Indonesia Year 1945. The Court in this case a role to enforce and the protector of the citizen's constitutional rights and the protector of the human rights. Including in this case, the right to religion and religious practices and teachings of their respective religions, in accordance with the constitutional mandate. However, on the other hand there is the discourse of freedom of expression and freedom of speech includes freedom to broadcast religious beliefs and understanding of the "deviant" and against the "mainstream" religious beliefs and understanding in general, as in the case of Ahmadiyah. The Court in this case is required to provide the best attitude when faced judicial review in this case still required in addition to guarding the constitution in order to run properly.   Abstrak: Menyoal Kebebasan Beragama dan Penodaan Agama di Indonesia. Kehadiran lembaga Mahkamah Konstitusi di era reformasi merupakan upaya penguatan terhadap dasar-dasar konstitusionalisme pada Undang-Undang Dasar Negara Republik Indonesia Tahun 1945. MK dalam hal ini berperan menegakkan dan melindungi hak-hak konstitusional warga negara (the protector of the citizen’s constitutional rights) dan pelindung HAM (the protector of the human rights). Termasuk dalam hal ini, hak untuk memeluk agama dan menjalankan ibadah serta ajaran agamanya masing-masing, sesuai dengan amanat konstitusi. Namun, disisi lain ada wacana kebebasan berekspresi dan kebebasan berpendapat termasuk didalamnya kebebasan untuk menyiarkan keyakinan dan pemahaman keagamaan yang “menyimpang” dan bertentangan dengan “mainstream” keyakinan dan pemahaman keagamaan pada umumnya, seperti dalam kasus Ahmadiyah. MK dalam hal ini dituntut untuk mampu memberikan sikap terbaik saat dihadapkan judicial review dalam kasus ini selain tetap dituntut untuk mengawal konstitusi agar dapat berjalan sebagaimana mestinya. DOI: 10.15408/jch.v2i2.2314

scholarly journals Awareness on Constitutional Rights of Citizens and Form of Protection of Constitutional Rights of Citizens in Indonesia

2018 ◽  
Vol 1 (4) ◽  
pp. 1003
Author(s):  
Tafta Aji Prihandono ◽  
Sri Kusriyah Kusriyah ◽  
Widayati Widayati
Keyword(s):  
Human Rights ◽  
The State ◽  
Historical Change ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Dynamic Aspect ◽  
State Law ◽  
The Republic ◽  
The Government

In the Constitution of the Republic of Indonesia of 1945 Article 1 (3) explicitly states that Indonesia is a State of Law. One element that is owned by the state law is the fulfillment of basic human rights as expressed by Friedrich Julius Stahl. Efforts to achieve a constitution that can follow the progress and will meet the basic human rights, the constitution must have a dynamic aspect and were able to capture the phenomenon of historical change, so as to make it as a constitution that is always alive. Only problem is the performance of the Government as the executor of the constitution (executive, legislative and judicial) still do not provide justice and satisfaction for those seeking justice, therefore the necessary awareness of constitutional rights of citizens in Indonesia. Efforts to protect the constitutional rights of Indonesian citizens can be done through the court and non-court lines, and can also via maximize the role of the Constitutional Court to extend its authority. The expansion of the authority of the Constitutional Court may be to accommodate Constitutional Complaint and Constitutional Question.Keywords: Awareness; Constitutional Rights; Form of Protection.

scholarly journals PENGATURAN HUKUM CALON LEGISLATIF MANTAN NARAPIDANA

2020 ◽  
Vol 2 (1) ◽  
pp. 33
Author(s):  
Salim Fauzi Lubis ◽  
Ismail Ismail ◽  
Mina Mardiana
Keyword(s):  
Human Rights ◽  
The State ◽  
Constitutional Rights ◽  
Political Rights ◽  
Legal Research ◽  
The People ◽  
General Elections ◽  
The Republic ◽  
The Right ◽  
Election Commission

Election or local election is a way of channeling the rights of every principle community, which means that the right to vote and vote is contained in his constitutional rights as citizens. In article 28 letter D of the Republic of Indonesia Republic of 1945 which reads that "every citizen has the right to have the same opportunity in government". The sound contained in the article contains the understanding that the State guarantees each of its citizens to obtain the rights to sit in government either as People's Representatives, regents, Mayors, Governors, or even become a President. The method used in this study is normative juridical legal research which uses a statutory approach. The issue raised by the author is How the Human Rights Perspective of Legislative Candidates in Organizing Elections and How Comparative Legal Arrangements for Former Legislative Candidates Examined From Law Number 7 of 2017 Concerning General Elections With Regulation of the Election Commission Number 20 of 2018 Regarding Nominating Members Regional Representative Council, Provincial Regional Representative Council, Regency / City Representative Council. In terms of the implementation of elections need to be held honestly, fairly and democratically based on the spirit of Democracy that has been carried out so far so as to create leaders and representatives of the people who side with their people. Speaking of Human Rights, everyone has the same rights before the State and applies to former corruption convicts who have or have the same political rights as other citizens guaranteed by the constitution.

Amendment of the Contravention Code or Defiance of the Constitution by the Exceptional Situations Commission?

2021 ◽  
pp. 56-65
Author(s):  
Iulian Rusanovschi ◽  
Keyword(s):  
Public Health ◽  
The State ◽  
Constitutional Court ◽  
State Of Emergency ◽  
Constitutional Review ◽  
Republic Of Moldova ◽  
The Republic ◽  
The Right ◽  
Epidemiological Situation

On 17.03.2020, the Parliament declared a state of emergency on the entire territory of the Republic of Moldova for the period March 17 - May 15, 2020. By the same Decision, the Parliament delegated the Commission for Exceptional Situations with the right to implement a series of measures to overcome the epidemiological situation in the country. However, in the conditions of a functioning Parliament and despite the clear and exhaustive texts of the Constitution, the Commission for Exceptional Situations amended during the state of emergency the Contravention Code, which is an organic law. The amendments specifically concerned the procedure and terms for examining infringement cases brought in connection with non-compliance with the measures adopted by the Commission for Exceptional Situations and the Extraordinary Commission for Public Health. In the conditions in which an organic law can be modified only by the Parliament, it is obvious the unconstitutionality, at least partial, of the Disposition no. 4 of 24.03.2020 of the Commission for Exceptional Situations, but unfortunately, the Constitutional Court is not mandated with the right to submit to constitutional review the normative acts adopted by the Commission for Exceptional Situations. Under these conditions, the state is obliged to identify solutions in order not to allow an authority to adopt unconstitutional normative acts that cannot be subject to constitutional review.

scholarly journals Penegakan Putusan Mahkamah Konstitusi Nomor 13/PUU-XV/2017 Mengenai Hak Mendapatkan Pekerjaan dan Hak Membentuk Keluarga

2019 ◽  
Vol 15 (4) ◽  
pp. 858
Author(s):  
Muhammad Reza Winata ◽  
Intan Permata Putri
Keyword(s):  
Qualitative Research ◽  
Judicial Review ◽  
Industrial Relations ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Freedom Of Contract ◽  
Legal Power ◽  
The Supreme Court ◽  
The Republic ◽  
The Right

Jaminan konstitusi terkait hak konstitusional untuk mendapatkan pekerjaan dalam Pasal 28D ayat (2) UUD NRI 1945 dan hak konstitusional untuk membentuk keluarga dalam Pasal 28B ayat (1) UUD 1945 telah dibatasi dengan adanya ketentuan Pasal 153 ayat (1) huruf f Undang-Undang No 13 Tahun 2003 tentang Ketenagakerjaan. Keberadaan perjanjian kerja menghalangi hak pekerja untuk menikah dalam satu institusi karena pekerja harus mengalami pemutusan hubungan kerja untuk dapat melaksanakan haknya membentuk keluarga yang sebenarnya dijamin dalam konstitusi dan peraturan perundang- undangan. Pengujian Pasal 153 ayat (1) huruf f UU No 13 Tahun 2003 dalam Putusan Mahkamah Konstitusi Nomor 13/PUU-XV/2017 telah menyatakan frasa "kecuali telah diatur dalam perjanjian kerja, peraturan Perusahaan, atau perjanjian kerja bersama" bertentangan dengan UUD 1945. Artikel ini hendak menjawab kekuatan mengikat dan akibat hukum putusan, sekaligus Penegakan putusan dengan memetakan penyelesaian terkait peraturan perundang-undangan dan perjanjian kerja yang tidak tidak sesuai dengan putusan dan bertentangan dengan prinsip kebebasan berkontrak. Penelitian ini didasarkan pada penelitian kualitatif, dimana sumber analisis yakni Putusan MK terkait permasalahan yang diangkat, peraturan perundang-undangan, buku dan artikel ilmiah. Artikel ini hendak memetakan penyelesaian yang sesuai terkait kepada perjanjian kerja yang tidak menjamin hak pekerja yang dijamin dalam konstitusi, serta bertentangan dengan prinsip kebebasan berkontrak. yakni: pertama, penyelarasan peraturan perundang undangan di bawah Undang-undang judicial review di Mahkamah Agung, kedua, penyelesaian perselisihan hak melalui Pengadilan Hubungan Industrian yang akan menguji penegakan putusan dalam perjanjian kerja, peraturan perusahaan, atau perjanjian kerja bersama.The constitutional guarantee regarding constitutional rights to obtain employment in Article 28 D paragraph (2) of the 1945 Constitution of the Republic of Indonesia and the constitutional rights to form a family in Article 28 B paragraph (1) of the 1945 Constitution has been limited by the provisions of Article 153 paragraph (1) letter f Law No. 13 of 2003 concerning Labor. The existence of a work agreement prevents the right of workers to get married in one institution because workers must experience termination of employment to be able to exercise their rights to form a family which is actually guaranteed in the constitution and legislation. Testing Article 153 paragraph (1) letter f of Law No. 13 of 2003 in the Decision of the Constitutional Court Number 13/PUU-XV/2017 has stated the phrase "except as stipulated in work agreements, company regulations, or collective labor agreements" contrary to the 1945 Constitution. This article is about to answer the binding and consequent legal power of the decision, as well as Enforcement of decisions by mapping out solutions related to legislation and work agreements that are not incompatible with decisions and are contrary to the principle of freedom of contract. This research is based on qualitative research, where the source of analysis is the Constitutional Court Decision related to the issues raised, legislation, scientific books, and articles. This article intends to map appropriate solutions related to work agreements that do not guarantee workers’ rights guaranteed in the constitution, as well as contrary to the principle of freedom of contract. namely: first, alignment of legislation under the judicial review law in the Supreme Court, secondly, settlement of rights disputes through the Industrial Relations Court which will test enforcement of decisions in work agreements, company regulations, or collective labor agreements.

scholarly journals Hak-hak Konstitusional Anak terkait Penelantaran Akibat Perceraian

2021 ◽  
Vol 1 (1) ◽  
pp. 27-35
Author(s):  
Yusnani Hasyimzum ◽  
Keyword(s):  
Human Rights ◽  
Child Neglect ◽  
Growth And Development ◽  
Future Generation ◽  
Children's Rights ◽  
Special Consideration ◽  
Constitutional Rights ◽  
The Republic ◽  
The Government ◽  
The Right

Abstract Children, both boys and girls, are considered state assets because they represent the nation's future generation. Children's development and growth require special consideration and protection on the part of parents, family, society, nation, and state. Children's constitutional rights are regulated in the 1945 Constitution, which guarantees the welfare of every citizen, including protection against violations of children's rights, which are considered human rights. Every child has the right to survival, growth, and development, as well as the right to be protected from violence and discrimination, as mandated by the 1945 Constitution of the Republic of Indonesia; additionally, every child has the right to survival, growth, and development, as well as the right to be protected from violence and discrimination; The issue is why the constitutional rights of children who have been neglected as a result of divorce have not been fully complied with and what legal safeguards have the government implemented to reduce the number of child neglect victims.

scholarly journals Modderklip Revisited: Can Courts Compel the State to Expropriate Property where the Eviction of Unlawful Occupiers is not Just and Equitable?

2018 ◽  
Vol 21 ◽  
pp. 1-21
Author(s):  
Jackie Dugard
Keyword(s):  
South Africa ◽  
Separation Of Powers ◽  
The State ◽  
Court Case ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Western Cape ◽  
The Supreme Court ◽  
Constitutional Right ◽  
The Republic

This article examines whether, to give effect to the section 26 constitutional right to adequate housing, courts can (or should) compel the state to expropriate property in instances when it is not just and equitable to evict unlawful occupiers from privately-owned land (unfeasible eviction). This question was first raised in the Modderklip case, where both the Supreme Court of Appeal (Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2004 3 All SA 169 (SCA)) and Constitutional Court (President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC)). dodged the question, opting instead to award constitutional damages to the property owner for the long-term occupation of its property by unlawful occupiers. It is clear from cases such as Ekurhuleni Municipality v Dada 2009 4 SA 463 (SCA), that, mindful of separation of powers concerns, courts have until very recently been unwilling to order the state to expropriate property in such circumstances. At the same time, it is increasingly evident that the state has failed to fulfil its constitutional obligations to provide alternative accommodation for poor communities. In this context, this article argues that there is a growing need for the judiciary to consider, as part of its role to craft effective remedies for constitutional rights violations, the issue of judicial expropriation. It does so, first, through an analysis of the relevant jurisprudence on evictions sought by private landowners and, second, through an in-depth engagement of the recent Western Cape High Court case, Fischer v Persons Listed on Annexure X to the Notice of Motion and those Persons whose Identity are Unknown to the Applicant and who are Unlawfully Occupying or Attempting to Occupy Erf 150 (Remaining Extent) Phillipi, Cape Division, Province of the Western Cape; Stock v Persons Unlawfully Occupying Erven 145, 152, 156, 418, 3107, Phillipi & Portion 0 Farm 597, Cape Rd; Copper Moon Trading 203 (Pty) Ltd v Persons whose Identities are to the Applicant Unknown and who are Unlawfully Occupying Remainder Erf 149, Phillipi, Cape Town 2018 2 SA 228 (WCC).    

scholarly journals Urgency of the Right to Recognition for Identity’s Belief as A Part of Human Rights

2018 ◽  
Vol 4 (3) ◽  
pp. 296
Author(s):  
Winda Wijayanti
Keyword(s):  
Human Rights ◽  
Public Participation ◽  
The State ◽  
Constitutional Rights ◽  
State Administrators ◽  
Identity Card ◽  
Qualitative Descriptive ◽  
The Right

The right of recognition a belief is one of the basic human rights set forth in the Constitution. Population Administration Act as the executor of the constitutional mandate does not regulate of information column’s ”Belief” in an identity card (KTP-el) or a blank religion is a legal vacuum. Many debates occurred during the discussion and after the enactment of the Population Administration Act that only regulates the administration of population and issues between Religion and Belief as being very sensitive so that discussion of belief is considered not the domain of the Population Administration Act. Then, the absence of public participation in discussion of amendment Population Administration Act as a form of non-recognition of the existence of Believer in regulation. The problem is no rule for public participation in Population Administration Act. In fact, this paper used a normative juridical approach, with qualitative descriptive about debate of the Administration Population Act (DPR) to find out the urgency of the right to recognition for identity’s Belief through KTP-el. The result showed that inclusion of information column’s “Belief” is an entrance (gate) for the state's recognition of the people’s belief and their constitutional rights attached to it. Not only through words, but the recognition of the state through the State Administrators is manifested by legislation and communication (dialogue) between state and its citizens to remove all the existing attributes with equally, parallel, and continuously.

scholarly journals RESTRICTIONS OF THE POLITICAL RIGHTS AND FREEDOMS: REGULATORY GROUNDS, MECHANISM OF IMPLEMENTATION

2020 ◽  
pp. 18-24
Author(s):  
O. Kosilova
Keyword(s):  
Human Rights ◽  
Well Being ◽  
The State ◽  
General Nature ◽  
The Political ◽  
Constitutional Court ◽  
Political Rights ◽  
Process Implementation ◽  
Basic Law ◽  
The Right

The article examines the problem of restriction of political rights and freedoms. It is emphasized that the protection against unlawful restrictions on political rights and freedoms is particularly important for the functioning of direct and mediatory democracy. The meaning of the concept of «restriction of rights and freedoms» is analyzed. The article addresses the basic principles which should not be violated when the restriction of rights and freedoms is applied. To achieve this goal, the author analyzes the rules of domestic law, the practice of the Constitutional Court of Ukraine, the rules of international law governing these issues. The author differentiates political rights and freedoms into those that may be restricted in accordance with the provisions of the Basic Law of Ukraine and those that are not subject to any restrictions; features of realization of political rights and freedoms in comparison with other groups of rights, such as social and economic, cultural are defined. Some of the political rights and freedoms that may be restricted are analyzed and ways to restrict them are identified, in particular: the right to join political parties, suffrage, the right to peaceful assembly, rallies, marches and demonstrations, the right to equal access to public service, freedom words, thoughts, views and beliefs. It is noted that from the standpoint of the ECHR it is important to check whether the possibility of restricting the exercise of the right was provided by law; whether the purpose of such a restriction is legitimate; whether such a restriction is necessary in a democratic society. The legitimate grounds for restricting human rights enshrined in the Constitution of Ukraine have been identified: public health; social necessity; rights, freedoms and dignity of citizens; public order; economic well-being; national security; territorial integrity; morality of the population. It is emphasized that in accordance with the practice of the Constitutional Court of Ukraine, the restriction of the content and scope of rights and freedoms should be considered as a restriction. It is important that all restrictions were established exclusively by the constitution; were not arbitrary and unjust; the law restricting human rights must be of a general nature; restrictions must be proportionate and justified; they must optimally achieve a legitimate goal with minimal interference in the exercise of rights or freedoms, not to violate the essential content of the relevant right. It is determined that special qualification requirements for holding public positions, as well as participation in the electoral process (implementation of active and passive suffrage) cannot be considered restrictions. It is emphasized that the state, represented by its organs, should refrain from unjustified interference with political rights (for example, from discriminatory restrictions on the suspension of political rights of prisoners, violation of electoral secrecy of the ballot); take measures against possible violations of political rights by third parties (individuals, companies, etc.). It is concluded that restrictions on the exercise of political rights of individuals can be introduced either in favor of guaranteeing the rights of other individuals, or in favor of ensuring the functioning of the state. The legitimate exercise of political rights can be restricted only if the general conditions for interfering with fundamental human rights are met.

scholarly journals State responsibility for damage caused by unfair sentence or unfounded arrest

2013 ◽  
pp. 653-665
Author(s):  
Natasa Mrvic-Petrovic ◽  
Zdravko Petrovic
Keyword(s):  
Human Rights ◽  
The State ◽  
State Responsibility ◽  
Legal Basis ◽  
Criminal Proceedings ◽  
General Rules ◽  
Legal Nature ◽  
Protection Of Human Rights ◽  
The Republic ◽  
The Right

The legal basis of state responsibility for damage caused by unfair sentence or unfounded arrest is the need to protect fundamental human rights and freedoms guaranteed by the Constitution and generally accepted international rules. The right to compensation on this basis (although subjective civil right) has a sui generis legal nature, because it is connected with the protection of human rights. Joint public-private legal nature of such a request is expressed in the legislation of the Republic of Serbia, because the circle of authorized persons and the conditions under which they may be entitled to compensation is determined by the criminal procedural rules, while the existence of a legally recognized forms of damage and the extent to which the damage may be reimbursed is estimated according to the general rules of Law of obligations. While the legislation is very progressive, it is observed that, in practice, the applications for compensation are usually submitted because of the most unreasonable detention of up to one month or three months, and the inefficiency of the criminal proceedings, suspended upon the expiration of the absolute limitation of prosecution. The state could easily affect these practices. Also, the priority of state must be meeting its financial obligations with regard to final adjustments, and the imposition of demands for compensation.

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