scholarly journals "Peradilan Konstitusional" oleh Mahkamah Agung melalui Mekanisme Pengujian Konkret

2019 ◽  
Vol 16 (1) ◽  
pp. 61
Author(s):  
Titon Slamet Kurnia
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Constitutional Court ◽  
Concrete Case ◽  
Exclusive Jurisdiction ◽  
The Supreme Court

Artikel ini membahas kemungkinan untuk Mahkamah Agung menjalankan fungsi sebagai peradilan konstitusional. Argumen yang diajukan adalah Mahkamah Agung harus memegang kewenangan yang sama dengan Mahkamah Konstitusi dalam menguji konstitusionalitas undang-undang. Perbedaannya adalah, Mahkamah Konstitusi memiliki kewenangan untuk membatalkan undang-undang yang bertentangan dengan konstitusi, sementara Mahkamah Agung tidak memiliki kewenangan itu. Dalam menguji konstitusionalitas undang-undang, Mahkamah Agung bertindak sebagai peradilan biasa yang memeriksa perkara atau kasus konkret, bukan perkara atau kasus abstrak. Dengan demikian, praktik ini memiliki kesamaan dengan praktik Mahkamah Agung Amerika Serikat, ketimbang praktik Mahkamah Konstitusi. Untuk mendukung argumen ini maka asas praduga konstitusional seharusnya tidak berlaku bagi Mahkamah Agung.This article argues for the possibility of the Indonesian Supreme Court to undertake the role as constitutional court. The argument suggests that the Indonesian Supreme Court should hold concurring authority with the Indonesian Constitutional Court in reviewing the constitutionality of laws. While the Indonesian Constitutional Court has the exclusive jurisdiction for invalidating the unconstitutional laws, the Indonesian Supreme Court does not have such jurisdiction. In reviewing the constitutionality of laws, the Indonesian Supreme Court exercises its jurisdiction as ordinary court. It reviews a concrete case, not the abstract one. Therefore, this practice is similar with the practice of the Supreme Court of the United States, instead of the practice of the Indonesian Constitutional Court. To support this argument, the principle of presumption of constitutionality should not be applicable to the Indonesian Supreme Court.

The United States Supreme Court’s case selection: A primer for the South African Constitutional Court in hearing matters of general public importance

2021 ◽  
Vol 8 (2) ◽  
pp. 149-174
Author(s):  
Paul Nkoane
Keyword(s):  
United States ◽  
Supreme Court ◽  
South African ◽  
General Public ◽  
The United States ◽  
Constitutional Court ◽  
United States Supreme ◽  
The South ◽  
Case Selection ◽  
The Supreme Court

The jurisdiction of the South African Constitutional Court has been extended for the court to administer ‘matters of general public importance’ in addition to administering constitutional matters. There is no South African court that accepted appeals on the grounds that the matter raised an arguable point of law of general public importance. This novelty in the South African law requires an inspection of other jurisdictions to determine which matters the Constitutional Court should accept for appeals. In this respect, the article inspects the Supreme Court of the United States case docket to determine the kinds of cases the court accepts for appeals.

Freedom of Communication in the US and Europe

ICL Journal ◽  
2013 ◽  
Vol 7 (2) ◽  
Author(s):  
Pedro Tenorio
Keyword(s):  
United States ◽  
Supreme Court ◽  
Freedom Of Expression ◽  
Burden Of Proof ◽  
Freedom Of Speech ◽  
The United States ◽  
Constitutional Court ◽  
The Press ◽  
The Supreme Court ◽  
The Us

AbstractThis paper compares the freedom of communication in the jurisprudence of the Supreme Court of the United States and the European Court of Human Rights, departing from the judgments of the Supreme Court of the United States. It is noted that there are differences, as specified herein. Regulatory texts invite to speak of two distinct models, though this may be a far-fetched statement. This paper makes the following concluding remarks: 1) There are many concepts of freedom of expression that are compatible with democracy; the one derived from the Sullivan Judgment in the US (and in Europe from the Lingens Judgment) is not the only one, although it is currently considered the most consist­ent with democracy. This point is not discussed here. 2) Major changes sometimes occur through seemingly small details. In this sense, the shift of the burden of proof in defama­tion cases (Sullivan) has created an earthquake in the legal regime governing the press. The Sullivan doctrine can be summarized as follows: first, errors are inevitable, as freedom of speech requires ‘breathing room’; second, the malice of those accused of defamation must be proven; third, it is necessary to prove the lack of veracity of the slanderer. This doctrine allows the press to play its role as the watchdog of freedom. 3) In Spain, the press also appears to play this role, thus requiring us to ask whether there is, or ever was, a Sullivan Judgment in Spanish jurisprudence. We tend to attribute the privileged position of the press in Spain to the fact that the Constitutional Court has given preferential consid­eration to freedom of speech when it is in conflict with honor, intimacy and self-image privacy. This preference is justified by its connection to democracy. Since the judgment of the Spanish Constitutional Court (STC hereafter) 6/1981 of 16 March, the Spanish Consti­tutional Court has stressed the importance of freedom of information for democracy, and since the STC 159/1986 of 16 December, the Constitutional Court has suggested the pref­erential position of freedom of expression. However, the incorporation of the Sullivan doc­trine into the Spanish system occurred through STC 6/1988 of 21 January, almost ten years after the passage of the Constitution into law.

scholarly journals Verification of constitutionality of tax breaks: Russian and U.S. approaches

2020 ◽  
pp. 67-78
Author(s):  
Tatiana Dmitrievna Bratko
Keyword(s):  
United States ◽  
Supreme Court ◽  
Russian Federation ◽  
The United States ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
The Supreme Court ◽  
Positive Assessment ◽  
The Russian Federation ◽  
Constitutional Right

  Ensuring compliance with the generally accepted principles of law, protection of human and civil constitutional right and freedoms are attributed to a number of fundamental problems of the Russian and foreign law. Special place among them belongs to the problem of protection of constitutional rights of tax payers, particularly the contest of constitutionality of tax breaks. The essentially different approaches towards verification of constitutionality of tax breaks have established in the Russian Federation and the United States. Unlike the Supreme Court of the United States, the Constitutional Court of the Russian Federation refuses to verify the constitutionality of tax breaks based on compliances of the taxpayers, and thus in the author’s opinion, neglects the violation of constitutional norms. The goal of this article consists in examination of the problem of contest of constitutionality of tax breaks by the Russian taxpayers, and finding a possible way for its solution that would ensure compliance with the constitutional requirements in terms of tax incentivization. For achieving the set goal, the author resorts to comparative analysis of the practice of the Constitutional Court of the Russian Federation and the Supreme Court of the United States on the questions of verification of constitutionality of tax breaks. The author believes that the Supreme Court of the United States leans on the presumption of constitutionality of tax breaks, while the Constitutional Court of the Russian Federation – on the fiction of constitutionality of tax breaks. The conclusion is made in the need for implementation of the U.S. experience in the Russian Federation due to positive assessment of the developed by the Supreme Court of the United States algorithm of verification of constitutionality of tax breaks and presumption of constitutionality of tax breaks.  

scholarly journals Sistem Ketatanegaraan Indonesia Pasca Amandemen UUD 1945

2012 ◽  
Vol 2 (2) ◽  
pp. 185-207 ◽  
Author(s):  
Sri Warjiati
Keyword(s):  
United States ◽  
Supreme Court ◽  
Political System ◽  
The United States ◽  
Constitutional Court ◽  
Direct Election ◽  
The Supreme Court ◽  
The Creation ◽  
Legislative Amendments ◽  
Executive Body

Abstract: The article discuss the changes of indonesian political system in indonesia after the amendment of Indonesian Constitution of 1945 with the focus of the amendments of legislative, eecutive and judicative bodies. Legislative amendments is located in the emergence of a new body called DPD (Dewan Perwakilan Daerah of Regional Representative Assembly) as a part of MPR (Majelis Permusyawaratan Rakyat or People’s Consulatation Assembly) alongside DPR (Dewan Perwakilan Rakyat or House of Representative). Such amendment is basically a modifictaion of bicameral system as that of the United States’ political system. Executive body amendments lies on direct election of president, limitation of presidential tenure up to two tenures of five years, and likeliness of presidential impeachment in case of breaking law and constitution. Amendment on judicative body is obviously apparent in the creation of Constitutional Court alongside the Supreme Court and Judicial comission which is in charge of safeguarding the judgeship profession.Kata Kunci: Amandemen, UUD, dan System Ketatanegaraan

In the Supreme Court of the United States: Clara Watson v. Fort Worth Bank & Trust..

1988 ◽  
Vol 43 (12) ◽  
pp. 1019-1028 ◽  
Author(s):  
Donald N. Bersoff ◽  
Laurel P. Malson ◽  
Donald B. Verrilli
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Fort Worth ◽  
The Supreme Court
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