scholarly journals Legal-Political Paradigm of Indonesian Constitutional Court: Defending a Principled Instrumentalist Court

2020 ◽  
Vol 6 (1) ◽  
pp. 36
Author(s):  
Mirza Satria Buana

The establishment of the Indonesian Constitutional Court in 2003 signified the formation of a bridge between the judiciary and politics. Through its judicial review process, there is a more tangible presence of the judiciary and court in the political arena. The Court helps with addressing moral predicaments and influencing the products of the legislature. This paper discusses the shifting of the legal-politico paradigm, particularly relating to judicial leadership of the Court because this significantly affects the role of the Court in the political arena. The history of the establishment of the Court’s authority in judicial review is explored through a stylised analysis of the actions of two early Chief Justices. This paper also examines two Court decisions which illustrated the Court’s authority on judicial review because they demonstrated the importance of policy-driven decisions and judicial restraint. The main argument of this work is that it is hard to categorize the legal-politico actions of the Indonesian Court into either legalism or instrumentalism. Often, the Court synthesises the two. The legal-politico paradigm is a dynamic one. The most feasible model of the Indonesian Constitutional Court is that of a Principled Instrumentalist Court, where policy decisions guide the formation of legislation according to constitutional values, but the judges maintain prudential self-restraint.

2008 ◽  
Vol 21 (1) ◽  
pp. 227-238
Author(s):  
L.W. Sumner

The complaint is a familiar one: unelected, politically unaccountable judges are using their powers of judicial review to subvert the democratic process by shaping public policy in accordance with their own personal moral/political views. It is tempting to dismiss this complaint as the grumbling of those, usually (though not invariably) on the political right, who have been disaffected by court decisions with which they personally disagree. But this temptation must be resisted, since the critics of judicial review, such as Jeremy Waldron, raise important issues about the role of judges in a democratic political system. In his recent book A Common Law Theory of Judicial Review, Wil Waluchow responds to the critics' arguments. This Critical Notice outlines his response and assesses its adequacy.


Author(s):  
Simon Butt ◽  
Prayekti Murharjanti

This chapter examines the environmental law of Indonesia. It first provides an overview of the allocation of powers with respect to Indonesia’s environmental law, taking into account the constitutional basis of environmental protection and the Ministry of Environment’s devolution of powers for managing the environment. The chapter then considers the structure and substance of environmental regulations as they apply to pollution control and hazardous waste, air pollution and climate change, and marine and fisheries. It concludes with an analysis of the implementation framework for environmental law, focusing on the creation of the Ministry of Environment and Forestry via the merger of the Ministry of Environment and Ministry of Forestry. Judicial enforcement of environmental law is also explored, with emphasis on the role of certified judges assigned to the general and administrative courts, judicial decisions and enforcement, judicial review in the Constitutional Court, judicial reasoning, and enforcement of Constitutional Court decisions.


2016 ◽  
Vol 1 (1) ◽  
pp. 72
Author(s):  
Heribertus Jaka Triyana

The Indonesian Constitutional Court has played important roles and functions to protect and fulfill human rights in the Indonesian legal system including the economic, social and cultural rights through its legal power of  judicial review.   It affirms that the ecosoc rights are legal justiciable rights and they are parts of constitutional mandates. It means that decision on judicial reviews require State to behave in accordance to legal thresholds decided by the Court. Undoubtedly, compliance to the decisions will reveal undeniable facts for fulfilment of state conduct. However, it seems that there are still many considerations, emphasis and excuse to somehow reduce or ignore threshold of application of the Court decisions. Complexity of actors, institutions, authorities, level of implementation, and orientation of particular policies, programs, actions and funds reduces the thresholds.


Author(s):  
Namig MAMMADOV

This article examines and analyzes the history of the formation and development of the National Outlook Movement in Turkey, its ideology and social base and the main driving forces, as well as the main political parties and their activities. The article also analyzes the historical circumstances that influenced the formation and development of the movement, including the role of the movement's leader, prominent scientist and researcher, professor Najmeddin Erbakan, as well as the reasons for his entry into the political arena and its consequences. The role of N. Erbakan in the political life of Turkey was investigated and tried to be evaluated. It was noted that, the main ideology of the National Outlook parties is a free market economy without interest, the strengthening of production, the establishment of a just society in which basic human rights are protected, and so on.The first openly political Islamist political party in Turkish history was the National Order Party, formed on January 30, 1970. However, the party did not last long and was closed in 1971 by a decision of the Constitutional Court. Instead, party representatives formed the National Salvation Party in October 1972. This party, like all other political parties in Turkey, was closed after the 1980 coup. However, it became a partner of the government for the first time, and one of the most important decisions of this government was send of Turkish forces to Cyprus.With the permission of the National Security Council, the Welfare Party (WP) was formed in 1983 under the leadership of Ahmet Tekdal, representing the same direction. After the lifting of political bans, N. Erbakan was re-elected party leader. The 1990s marked a new stage in the development of the National Outlook movement. The Welfare Party's reputation began to rise. In the 1995 elections, the party won 21 percent of the vote. In 1996, N. Erbakan formed a coalition government with the True Path Party, led by Tansu Chiller. This government resigned as a result of the February 28 process, and the party was dissolved. The members of the party formed the Virtue Party. Disagreements between innovative and conservative groups within the party led to the formation of two political parties, the Justice and Development Party and the Felicity Party, after the party was dissolved in 2001.


2021 ◽  
Author(s):  
Inna Tsinman

This project examines the political phenomenon of the acceptance of Israeli Russian Jews claiming refugee status in Canada. The paper examines this phenomenon by unravelling the role of human rights in Canadian nation building, the Immigration and Refugee Board's (IRB) member-appointment process and the use of the IRB as a tool for enhancing Canada's image as human rights promoter, and Canadian foreign policy towards Israel. The main argument of this paper is that the reason for the acceptance of Israeli refugee claims is that some IRB members hold an agenda on promoting human rights. This project is based on the examination of academic literature, media articles, IRB and Federal Court decisions, and interviews with a variety of stakeholders.


2021 ◽  
Author(s):  
Inna Tsinman

This project examines the political phenomenon of the acceptance of Israeli Russian Jews claiming refugee status in Canada. The paper examines this phenomenon by unravelling the role of human rights in Canadian nation building, the Immigration and Refugee Board's (IRB) member-appointment process and the use of the IRB as a tool for enhancing Canada's image as human rights promoter, and Canadian foreign policy towards Israel. The main argument of this paper is that the reason for the acceptance of Israeli refugee claims is that some IRB members hold an agenda on promoting human rights. This project is based on the examination of academic literature, media articles, IRB and Federal Court decisions, and interviews with a variety of stakeholders.


Author(s):  
Laura Díez Bueso

The constitutional case law on political parties has been vital to the construction of the Spanish democratic state, contributing decisively to its current configuration. The decisions of the Constitutional Court have gradually defined the regimen of the political parties, especially in the last fifteen years. Several areas have been covered by the Court in this matter; however, the approval of the Organic Law 6/2002, on political parties (LPP), and the Organic Law 3/2007, for the effective equality between women and men (LEWM), have led to various decisions considered essential, not only for the regime of the parties, but also for the history of the Constitutional Court. The complexity of the matters addressed and its ideological connotation caused some division within the Court, resulting in a good amount of dissenting opinions, some of which containing strong criticisms against the decisions. It is not surprising either that this complexity and ideological implications stimulate the academic interest, which has been lavished on studies about this constitutional case law. of the Constitutional Court decisions concerning political parties in the last fifteen years and, in turn, assesses the essential lines marked by the Court and the convergent or divergent reactions of the academia.La jurisprudencia constitucional en materia de partidos políticos ha sido vital para la construcción del Estado democrático español, contribuyendo de manera decisiva a su configuración actual. Las Sentencias del Tribunal Constitucional (TC) han ido progresivamente delimitando el Derecho de partidos y lo han hecho muy especialmente en los últimos quince años. Han sido diversos los ámbitos tratados por el Tribunal en esta materia; no obstante, la aprobación de la Ley Orgánica 6/2002, de partidos políticos, y de la Ley Orgánica 3/2007, para la igualdad efectiva de mujeres y hombres, han propiciado diversos pronunciamientos considerados claves, no sólo desde el punto de vista del régimen jurídico de los partidos, sino también en el contexto de la historia de la corte constitucional. La complejidad de los asuntos tratados y su carga ideológica han propiciado cierta división en el seno del propio Tribunal, dando lugar a una cantidad nada despreciable de votos particulares, algunos de los cuales han criticado con dureza el posicionamiento mayoritario. No es de extrañar tampoco que esta complejidad y connotación ideológica despertara el interés doctrinal, que se ha prodigado en la publicación de estudios jurídicos que examinan esta jurisprudencia. Todos estos estudios han tratado de forma aislada las distintas Sentencias del TC, formando un corpus doctrinal abundante pero segmentado. Hasta la fecha, no se ha llevado a cabo un análisis que exponga sistemáticamente los componentes esenciales de estas Sentencias y que recoja las principales reacciones doctrinales respeto de los mismos. Y este es el objeto del trabajo que se expone a continuación. Lejos de contener una síntesis detallada de todos los aspectos de la jurisprudencia constitucional derivada de la aprobación de la LOPP y la LOIMH, realiza una selección de los temas claves tratados en estas Sentencias y, correlativamente, de las principales respuestas académicas. Esta labor provee de un prontuario sistematizado sobre los asuntos primordiales en materia de partidos políticos recogidos en la jurisprudencia constitucional de los últimos quince años y, a su vez, permite evaluar las líneas fundamentales marcadas por el TC así como las valoraciones, convergentes o divergentes, de la doctrina


2014 ◽  
Vol 2 (2) ◽  
Author(s):  
Nur Asikin Thalib

Abstract: Women Rights in Politics after the Constitution Court Decision. Women and the Man have equal rights and duty in politics. Due to the cultural barrier, the political representation in Parliament is still low. To fill the gab, The Act No 10. 2008 regulate 30 percent of women representation in Parliament. Responding this promulgation, some parties went to the Constitutional Court to ask the annulations of this Act. The Court abolished the article 214 and replaced it based on majority voices. This article will discuss the judicial review process and the challenges faced after the Court’s  decision. Abstrak: Hak Politik Perempuan Pasca Putusan Mahkamah Konstitusi. Perempuan dan laki memiliki hak dan kewajiban yang sama dalam politik. Namun begitu, hambatan yang timbul diantaranya karena faktor budaya, menyebabkan representasi politik perempuan di Parlemen masih sangat rendah. Sebagai upaya mengejar ketertinggalan tersebut, disyahkanlah Pasal 214 UU Nomor 10 Tahun 2008 yang memberikan quota minimal 30 persen bagi perempuan di parlemen. Ketentuan ini membuat sebagian kalangan untuk mempertanyakan judicial review atas ketentuan tersebut. Mahkamah Konstitusi (MK) menyetujui judicial review tersebut dengan menghapuskan ketentuantersebut mengganti dengan suara terbanyak. Tulisan ini membahas proses judial review tersebut dan tantangan yang dihadapi paska putusan MK tersebut.  DOI: 10.15408/jch.v1i2.1466


2020 ◽  
Vol 54 (4) ◽  
pp. 403-431
Author(s):  
Bulat R. Rakhimzianov

Abstract This article explores relations between Muscovy and the so-called Later Golden Horde successor states that existed during the fifteenth and sixteenth centuries on the territory of Desht-i Qipchaq (the Qipchaq Steppe, a part of the East European steppe bounded roughly by the Oskol and Tobol rivers, the steppe-forest line, and the Caspian and Aral Seas). As a part of, and later a successor to, the Juchid ulus (also known as the Golden Horde), Muscovy adopted a number of its political and social institutions. The most crucial events in the almost six-century-long history of relations between Muscovy and the Tatars (13–18th centuries) were the Mongol invasion of the Northern, Eastern and parts of the Southern Rus’ principalities between 1237 and 1241, and the Muscovite annexation of the Kazan and Astrakhan khanates between 1552 and 1556. According to the model proposed here, the Tatars began as the dominant partner in these mutual relations; however, from the beginning of the seventeenth century this role was gradually inverted. Indicators of a change in the relationship between the Muscovite grand principality and the Golden Horde can be found in the diplomatic contacts between Muscovy and the Tatar khanates. The main goal of the article is to reveal the changing position of Muscovy within the system of the Later Golden Horde successor states. An additional goal is to revisit the role of the Tatar khanates in the political history of Central Eurasia in the fifteenth and sixteenth centuries.


2020 ◽  
pp. 74-86
Author(s):  
Alexandra Arkhangelskaya

The history of the formation of South Africa as a single state is closely intertwined with events of international scale, which have accordingly influenced the definition and development of the main characteristics of the foreign policy of the emerging state. The Anglo-Boer wars and a number of other political and economic events led to the creation of the Union of South Africa under the protectorate of the British Empire in 1910. The political and economic evolution of the Union of South Africa has some specific features arising from specific historical conditions. The colonization of South Africa took place primarily due to the relocation of Dutch and English people who were mainly engaged in business activities (trade, mining, agriculture, etc.). Connected by many economic and financial threads with the elite of the countries from which the settlers left, the local elite began to develop production in the region at an accelerated pace. South Africa’s favorable climate and natural resources have made it a hub for foreign and local capital throughout the African continent. The geostrategic position is of particular importance for foreign policy in South Africa, which in many ways predetermined a great interest and was one of the fundamental factors of international involvement in the development of the region. The role of Jan Smuts, who served as Prime Minister of the Union of South Africa from 1919 to 1924 and from 1939 to 1948, was particularly prominent in the implementation of the foreign and domestic policy of the Union of South Africa in the focus period of this study. The main purpose of this article is to study the process of forming the mechanisms of the foreign policy of the Union of South Africa and the development of its diplomatic network in the period from 1910 to 1948.


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