scholarly journals Penambahan Kewenangan Constitutional Question di Mahkamah Konstitusi sebagai Upaya untuk Melindungi Hak-Hak Konstitusional Warga Negara

2019 ◽  
Vol 15 (4) ◽  
pp. 688
Author(s):  
Josua Satria Collins
Keyword(s):  
Qualitative Approach ◽  
Constitutional Amendment ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Constitutional Review ◽  
Legal Standing ◽  
Library Research ◽  
Democratic State ◽  
Constitutional System ◽  
Constitutional Adjudication

Penyempurnaan sistem hukum dan konstitusi merupakan prasyarat untuk membangun negara demokrasi konstitusional di Indonesia. Dalam cabang kekuasan kehakiman, salah satu upaya untuk mencapai hal tersebut terkait dengan adanya gagasan pembentukan mekanisme pertanyaan konstitusional (constitusional question). Istilah constitutional question merujuk pada suatu mekanisme pengujian konstitusionalitas di Mahkamah Konstitusi yang diajukan oleh seorang hakim di pengadilan umum yang merasa ragu-ragu terhadap konstitusionalitas suatu undang-undang yang digunakan dalam perkara yang sedang ditanganinya. Artikel ini membahas mengenai kemungkinan dibangunnya mekanisme constitutional question di Indonesia dengan alternatif implementasinya. Metodologi yang digunakan dalam penelitian ini berupa yuridis normatif dengan pendekatan kualitatif dan menggunakan bahan kepustakaan. Dari hasil penelitian ini disimpulkan bahwa terdapat urgensi untuk menambahkan kewenangan constitutional question kepada Mahkamah Konstitusi. Dengan adanya mekanisme tersebut, putusan hakim di pengadilan umum yang dinilai bertentangan dengan konstitusi dan dianggap melanggar hak konstitusional warga negara dapat dihindari. Kemudian, objek dan ruang pengujian terhadap peraturan perundangundangan menjadi semakin luas dan pelanggaran hak konstitusional terhadap warga negara dapat dipulihkan. Apabila constitutional question akan diterapkan di Indonesia, maka dasar kewenangan constitutional question sebaiknya diatur melalui perubahan konstitusi. Namun, hal tersebut dapat juga dilakukan dengan merevisi Undang-Undang Mahkamah Konstitusi, penafsiran konstitusi yang dituangkan di dalam putusan Mahkamah Konstitusi, ataupun perluasan legal standing untuk lembaga pengadilan sebagai salah satu pemohon constitutional review. Selain itu, perlu juga diatur mengenai kualifikasi pemohon constitutional question dan pembatasan waktu penanganan perkaranya oleh Mahkamah Konstitusi.Improving the legal and constitutional system is a prerequisite for building a constitutional democratic state in Indonesia. In a constitutional adjudication system, one of the efforts to achieve that goal is related to an idea to establish a constitutional question mechanism. The term of constitutional question refers to a mechanism for examining the constitutionality of a law in the Constitutional Court lodged by an ordinary judge who has a doubt regarding the constitutionality of the law applied in the case that is being handled by him/her. This article discusses the possibility of establishing a constitutional question mechanism in Indonesia with its alternative implementations. The methodology used in this research was normative juridical writing with qualitative approach and library research. The research results found the urgency for expanding the authority of constitutional question to the Constitutional Court. With the existence of such mechanism, ordinary court decisions that are contrary to the constitution and violate the constitutional rights of the citizens can be avoided. Moreover, the scope of constitutional review of the legislation becomes expansive and constitutional rights violations can be recovered. If the constitutional question will be applied in Indonesia, the basis of the authority of constitutional question should be regulated through a constitutional amendment. However, it can be applied also by revising the Constitutional Court Law, the constitutional interpretation set forth in the Constitutional Court decision or the extension of legal standing for ordinary courts as one of the applicants for constitutional review. In addition, it is necessary to regulate the applicant’s qualification of constitutional question and time limitation for handling constitutional question cases by the Constitutional Court.

scholarly journals Application of the Constitution of Ukraine in the implementation of justice: basic principles

2020 ◽  
pp. 19-36
Author(s):  
Albert Ezerov
Keyword(s):  
Human Rights ◽  
Separation Of Powers ◽  
Direct Action ◽  
The State ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Constitutional Politics ◽  
Constitutional Review ◽  
Direct Operation ◽  
Constitutional System

The article focuses attention on the fact that the phenomenon of the Constitution is not limited to the constitutional text, since the Constitution, first of all, is a system of basic values designed to limit any manifestations of arbitrariness of public authority to ensure human rights. At the same time, it is noted that the «tangible» for the constitutional system exactly is the embodiment of the material Constitution as a text and a system of legal requirements in lawmaking and law enforcement, which directly depends on the subjects of law «users» of the Constitution. It is noted that the application by the courts of the Constitution as an act of direct action allows filling in the gaps and eliminating other defects in the legislation, is one of the dimensions the embodiment of the supremacy of the Constitution of Ukraine in the law application. It has also been established that the provisions of Article 8 of the Constitution, according to which its norms are direct action norms, and an appeal to the court to protect the constitutional rights and freedoms of a person and a citizen directly on the basis of the Constitution of Ukraine are guaranteed in a systematic connection with Article 150 of the Constitution according to that powers the Constitutional Court of Ukraine refers to the resolution of issues of compliance with the Constitution of Ukraine (constitutionality) of laws and other legal acts, cannot restrict courts in competence of direct application of the Constitution and solution to the issue of compliance with any other regulatory acts, that should be applied in a specific case. It has been proved that one of the mechanisms for ensuring the direct operation of the norms of the Constitution is the review of court decisions in view of exceptional circumstances, which is one of the manifestations of the «responsibility» of the state and responsible public administration, since in this way the state fulfills its the duty to restore of human rights as a consequence violation due adopting an act that has the subject of judicial constitutional review and recognized as unconstitutional. It is summarized that the Constitution will be real only with the active position of the courts on the application of its provisions in resolving disputes, and the courts will occupy a prominent place in the system of separation of powers, only if the Constitution will be basis of judicial decisions. Key words: courts of the judicial system, Constitution of Ukraine, implementation of justice, constitutional politics, constitutional conflicts, generic principles, application of constitutional norms, human dignity, constitutional values.

Constitutional Review Complaint as an Evolution of the Kelsenian Model

ICL Journal ◽  
2021 ◽  
Vol 14 (4) ◽  
pp. 423-446
Author(s):  
Jeong-In Yun
Keyword(s):  
World War Ii ◽  
Constitutional Amendment ◽  
Constitutional Court ◽  
Constitutional Review ◽  
Special Procedure ◽  
Hans Kelsen ◽  
Constitutional Tribunal ◽  
The Times ◽  
The Individual ◽  
Constitutional Adjudication

Abstract A centralized constitutional review system, generally known as the Austrian Constitutional Court model established in 1920 by Hans Kelsen, has spread globally after World War II and is now the most active constitutional tribunal in Europe. Interestingly, although the Constitutional Court of Korea was classified as this Kelsenian model, besides a typical kind of constitutional review procedure, the Court runs an additional procedure for the constitutional review of legislation. The latter has some comparatively special and unusual requirements and procedure, but the statistics indicate it has been actively used. It takes the form of a constitutional complaint, but in practice, it is treated as the second type of constitutional review of legislation in Korean constitutional adjudication. Through this special procedure, individuals appear to participate in a tripartite conversation on constitutional interpretation along with the judicial branch and the Constitutional Court. Moreover, to some extent, this sui generis complaint is perceived to make up for the prohibition of constitutional complaint on judgments of ordinary courts (‘Urteilsbeschwerde’) in Korea. In Austria, the individual complaint on constitutional review of statutes was introduced by a constitutional amendment in 2013, whereby the individual parties of the pending cases are entitled to file a constitutional review with the Constitutional Court as of 1 January 2015. In terms of enabling the individual party to request to the Constitutional Court for constitutional review of legislation, the Austrian new complaint is similar to the Korean one, but their requirements and procedures are different. From the perspective of enhanced individual access to the Constitutional Court, however, both complaints may be viewed as an evolution of the Kelsenian model to meet the demands of the times. In this regard, the Korean practice for over three decades may provide useful insights into the implementation of a new practice and further improvement in Austria. This article will examine the Korean ‘Constitutional Review Complaint’ and compare it with the Austrian ‘Gesetzesbeschwerde (Parteiantrag auf Normenkontrolle)’ to explore mutual references that will help improve both institutions. Then, I will assess what this kind of evolutionary invention of the constitutional review implies to the centennial of the Austrian model.

Constitutional Adjudication in Switzerland

2020 ◽  
pp. 779-840
Author(s):  
Giovanni Biaggini
Keyword(s):  
Supreme Court ◽  
Public Law ◽  
Decision Processes ◽  
Fundamental Rights ◽  
Constitutional Review ◽  
The Public ◽  
Federal Laws ◽  
Constitutional System ◽  
Constitutional Adjudication ◽  
Federal Supreme

This chapter considers how constitutional adjudication is conducted in Switzerland. It debunks the notion that the Swiss constitutional system is underdeveloped with regard to constitutional adjudication. The chapter contends that Switzerland has a thoroughly respectable system of constitutional adjudication, albeit with certain idiosyncratic flaws. In particular, this applies to cantonal state authority: the cantons are subject to comprehensive constitutional adjudication. This does not exclude the results of direct democratic decision processes. The Federal Supreme Court (Bundesgericht; Tribunal federal, Tribunale federale) has—and makes use of—the power to review cantonal laws and to revoke them if necessary. Constitutional case law in relation to the cantons is the basis on which the Federal Supreme Court developed an extraordinarily creative jurisprudence in the twentieth century; this jurisprudence has led, inter alia, to the recognition and use of several unwritten federal fundamental rights. In addition, the chapter argues that federal laws have ceased being completely immune against any kind of constitutional review. Finally, Switzerland played an important pioneering role in the development and testing of the public law appeal (Staatsrechtliche Beschwerde).

scholarly journals Dimensi Judicial Activism dalam Putusan Mahkamah Konstitusi

2016 ◽  
Vol 13 (2) ◽  
pp. 406
Author(s):  
Pan Mohamad Faiz
Keyword(s):  
Decision Making ◽  
Decision Making Process ◽  
Constitutional Court ◽  
Court Decisions ◽  
Constitutional Rights ◽  
Judicial Activism ◽  
Constitutional Review ◽  
Rights Protection ◽  
Strategic Role ◽  
Substantive Justice

A transformative amendment of the 1945 Constitution established a separate judicial institution called the Constitutional Court. This institution is believed to serve a strategic role within Indonesia’s plural legal  system  particularly  in  the area of constitutional review and constitutional rights protection. However, the performance of the Constitutional Court has attracted controversy. This controversy arises because the Court is concerned with introducing a sociological paradigm of law that embraces substantive justice with a fluid acknowledgment of procedural justice. A key criticism of the Constitutional Court is that the nature of Court decisions has developed into a practice of judicial activism. This article discusses the dimension of judicial activism used by the Constitutional Court on the grounds for protecting constitutional rights of the citizens through its decisions. It also analyses the extent of judicial activism that can be justified in the decision-making process   in the Constitutonal  Court.

scholarly journals Filling the Hole in Indonesia’s Constitutional System: Constitutional Courts and the Review of Regulations in a Split Jurisdiction

2018 ◽  
Vol 4 (1) ◽  
pp. 27
Author(s):  
Tim Lindsey
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Civil Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
The Real ◽  
The Supreme Court ◽  
Constitutional System ◽  
Do So

The Indonesian constitutional system contains a serious flaw that means that the constitutionality of a large number of laws cannot be determined by any court. Although the jurisdiction for the judicial review of laws is split between the Constitutional Court and the Supreme Court, neither can review the constitutionality of subordinate regulations. This is problematic because in Indonesia the real substance of statutes is often found in implementing regulations, of which there are very many. This paper argues that that is open to the Constitutional Court to reconsider its position on review of regulations in order to remedy this problem. It could do so by interpreting its power of judicial review of statutes to extend to laws below the level of statutes. The paper begins with a brief account of how Indonesia came to have a system of judicial constitutional review that is restricted to statutes. It then examines the experience of South Korea’s Constitutional Court, a court in an Asian civil law country with a split jurisdiction for judicial review of laws like Indonesia’s. Despite controversy, this court has been able to interpret its powers to constitutionally invalidate statutes in such a way as to extend them to subordinate regulations as well. This paper argues that Indonesia’s Constitutional Court should follow South Korea’s example, in order to prevent the possibility of constitutionalism being subverted by unconstitutional subordinate regulations.

scholarly journals GAGASAN PENGADUAN KONSTITUSIONAL DAN PENERAPANNYA DALAM SISTEM KETATANEGARAAN INDONESIA

Yuridika ◽  
2011 ◽  
Vol 26 (3) ◽  
Author(s):  
Ari Asmono
Keyword(s):  
Constitutional Court ◽  
Constitutional Rights ◽  
Democratic State

Constitutional complaint has an important role in a democratic state of law. constitutional complaint serves as a mechanism for the protection of citizen’s constitutional rights are violated by the authorities. with protected constitutional rights of a citizen, then a democratic state of law will be realized very well.Keywords : constitutional complaint, citizen’s constitutional rights, constitutional court.

scholarly journals THE NOVELTIES OF CONSTITUTIONAL CONTROL IN THE ALGERIAN CONSTITUTIONAL AMENDMENT 2020

2021 ◽  
Vol 03 (06) ◽  
pp. 253-261
Author(s):  
Hanane MISSAOUI
Keyword(s):  
The Body ◽  
The Other ◽  
Constitutional Amendment ◽  
Constitutional Court ◽  
Individual Rights ◽  
Political Structure ◽  
Legislative Organization ◽  
Constitutional Review ◽  
Legal Security ◽  
Full Protection

We consider constitutional review one of the main pillars of a state of law; it is a guarantee of the supremacy of the constitution, and a total respect of its provisions on one hand and a full protection of individual rights and liberties which are cited on the other hand. Algeria always relied on constitutional review in the development of its constitutions since its independence (except the constitution of 1976) through a political structure called the constitutional council, but the latter was renowned for its inactivity and ineffectiveness, that is why the constitutional founder was oblige to intervene within the framework of global constitutional reforms that the country has known in recent years, in order to concretize its role and achieve its objectives and the principles of legal security However these reforms have proved their failure including in the positive changes made to the amendment of the constitution of the year 2016 , that was the reason that lead the constitutional founder of 2020 think of make a full change of the nature of the body in charge of constitutional review, by creating the constitutional court with a completely different members, is this constitutional court will succeed to purify the national legislative organization, and to clean it from the unconstitutional provisions and to guarantee a full protection of individual rights and liberties?.

Part 3 Institutional Control of Constitutionalism, 3.1 Models of Institutional Control: The Experience of Islamic Countries

2012 ◽  
Author(s):  
Grote Rainer
Keyword(s):  
The United States ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Institutional Control ◽  
Constitutional Review ◽  
Islamic World ◽  
The United Kingdom ◽  
Islamic Countries ◽  
Almost All ◽  
Constitutional Adjudication

This chapter discusses constitutional review in Islamic countries. It covers the basic models of constitutional review; composition of constitutional courts; powers of constitutional courts; and effects of constitutional court decisions. It shows that introduction of constitutional review in the Islamic world has largely been pattered after foreign models, particularly of France (namely in the Maghreb countries and Lebanon), the United States (in Egypt and the Arab peninsula), the United Kingdom (Pakistan, Nigeria, Malaysia), and Germany (Turkey, Indonesia), with modifications to the particular political and cultural contexts of the respective countries. While almost all constitutional review bodies practice some form of constitutional review of legislation or another, most constitutions in the Islamic world still do not provide for access of individuals to constitutional adjudication.

The Strength of the Kinship Politics Network and Modalities of Pilar Saga in the 2020 South Tangerang Regional Head Election

2021 ◽  
Vol 1 (2) ◽  
pp. 119-130
Author(s):  
Hendy Setiawan ◽  
Khalimatus Sa’diyah
Keyword(s):  
Research Data ◽  
Qualitative Approach ◽  
Constitutional Court ◽  
Rational Behavior ◽  
Index Numbers ◽  
Corruption Case ◽  
Library Research ◽  
Political Network ◽  
Dynastic Politics ◽  
Descriptive Method

The issue of kinship politics networks and modalities Pilar Saga is built on the Ratu Atut Chosiyah's dynastic politics. Interestingly, the dynastic political network in Banten contributed to Pilar Saga's victory. Even the various corruption cases that ensnared Ratu Atut's family could not undermine her political network. For example, the corruption case of Ratu Atut for alleged bribery of the Constitutional Court and the trading of positions, T Chaeri Wardana for the corruption case of medical equipment, and Ratu Lilis Karyawati for the Cibenuangen River bypass case in Lebak, Banten. The purpose of this study was to analyze the extent to which Pilar Saga's kinship politics network and modalities influenced his victory in the 2020 South Tangerang Regional Head Election. This study used a qualitative approach with a descriptive method in South Tangerang. The research data was taken through observation and library research to strengthen the conclusion. The results show that the Pilar Saga political network and modalities, apart from being built from the Atut dynasty, were also boosted by the performance achievements of the incumbent Pilar Saga pair. The incumbent in the previous period with Airin Rachmi Diany (Atut's sister-in-law) was able to bring South Tangerang City to be the best Regency/City area in Banten in HDI (Human Development Index) numbers. On this basis, the rational behavior of voters in South Tangerang was not fooled by the various cases that ensnared their relatives in the corruption of the Ratu Atut Chosiyah dynasty.

Transnational constitutional engagement: A contextualization of global constitutionalism by the Constitutional Court of South Korea

2021 ◽  
Vol 10 (2) ◽  
pp. 256-274
Author(s):  
Yoon Jin Shin
Keyword(s):  
Analytical Framework ◽  
Constitutional Court ◽  
International Human Rights Law ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Complex Interactions ◽  
Network Building ◽  
Global Constitutionalism ◽  
Constitutional Adjudication ◽  
Transnational Engagement

AbstractThrough the analytical framework of ‘transnational constitutional engagement’, this article examines the dynamically developing practices of the South Korean Constitutional Court as it engages with international and foreign elements, both within and beyond constitutional adjudication processes. Diverse underlying factors and orientations in varied contexts, and the complex interactions between them, are responsible for shaping the modes of a local constitutional actor’s engagement with the transnational. In the vertical aspect, the court adopts international human rights law as a substantive standard of constitutional review through a version of cosmopolitan constitutional interpretation, while it has nevertheless exhibited ambiguity and incoherency in concrete applications. The horizontal aspects of transnational engagement include the court’s practice of referencing foreign law and cases in constitutional adjudication. The vibrancy and the evolving patterns of its citation practice reflect the court’s growing self-perception vis-à-vis the world – although limitations remain, such as geographical asymmetries among referenced jurisdictions. The court has also been enthusiastic in interacting with various transnational counterparts beyond adjudication processes, demonstrating eminent leadership in regional network-building among constitutional courts in Asia. With both cosmopolitan aspirations and nationalist ambitions playing a role in their shaping, the modes of transnational constitutional engagement are not to be generalized, but require contextualization, and the relevant practices should be subject to constant evaluations for their contribution in producing sound and effective concretizations of the values of global constitutionalism.

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