scholarly journals Constitutional principles and their impact on the establishing of constitutional order and rule of law in Kosovo

2020 ◽  
Vol 57 (4) ◽  
pp. 1079-1096
Author(s):  
Nur Çeku ◽  
Haxhi Xhemajli
Keyword(s):  
Rule Of Law ◽  
Minority Groups ◽  
Case Law ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Constitutional Order ◽  
The Republic ◽  
European Standards ◽  
The Right ◽  
The Impact

Considered as a progressive document based on the models of the Western constitutions, the Constitution of the Republic of Kosovo has established the legal basis for a functional statethat respects rights and fundamental freedoms while guaranteeing the rule of law. In its provisions, the Constitution has laid down basic principles which serve as the foundation for Kosovo’s constitutional order. In this regard, these constitutional principles have been further enshrined in the provisions of laws that emanate from the Constitution, and also have been established in the institutional mechanisms for its appropriate application. In addition, what played a prominent role in defining these principles was the impact of the Constitutional Court’s case-law. Case-law has reaffirmed in many instances the tremendous importance of constitutional principles in enhancing the rule of law, protecting the rights of minority groups and other members of Kosovo’s society, and the right to freedom of belief and secularism by implementing the most modern European standards in human protection. Hence, this paper analyzess the impact that constitutional principles have had on defining the structure of the state, guaranteeing the rule of law, protection of human rights and establishing Kosovo as a multi-ethnic society. Likewise, it examines the case-law of Kosovo’s Constitutional Court by providing some of the most prominent cases.

scholarly journals Komentarz na kanwie Uchwały Naczelnego Sądu Administracyjnego I FPS 1/21 – sądowa kontrola instrumentalnego wszczęcia postępowania karnego skarbowego a prawo do sądu

2021 ◽  
Vol 3 (31) ◽  
pp. 151-162
Author(s):  
Adam Szymacha ◽  
Kamil Rogalski
Keyword(s):  
Rule Of Law ◽  
Comparative Law ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Legal Method ◽  
The Right ◽  
The Impact

The purpose of the article/hypothesis: The presented article focuses on a new resolution of the Supreme Administrative Court I FPS 1/21. In this resolution an assessment of instrumental initiation of criminal fiscal proceedings in order to suspend the running of the limitation period of a tax liability has been undertaken. The Supreme Administrative Court assessed that administrative courts have the right to examine the legitimacy of initiation of such proceedings. This position is important insofar as it also touches upon the issue of the right to a fair trial, as well as the right to property and legal certainty. The main aim of this article is to check the impact of this resolution on described fundamental rights. Methodology: This article will use the comparative law method. Especially the case law of different courts will be shown. The dogmatic-legal method will also be used as an auxiliary. Results of the research: This resolution is crucial for the fundamental right for fail trial. It has also impact on the right to property and principle of legal certainity. It may also be some element that strengthens the rule of law.

scholarly journals How Far Is It from Warsaw to Luxembourg and Karlsruhe: The Impact of the PSPP Judgment on Poland

2020 ◽  
Vol 21 (5) ◽  
pp. 1104-1115
Author(s):  
Stanisław Biernat
Keyword(s):  
European Integration ◽  
Rule Of Law ◽  
Case Law ◽  
Eu Law ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
Constitutional Tribunal ◽  
Legal Position ◽  
The Impact

AbstractA concern was voiced in commentaries after the PSPP judgment that the BVerfG’s position regarding the refusal to apply in Germany the CJEU judgment as issued on an ultra vires basis might be used in EU Member States infringing the rule of law, and the independence of the judiciary in particular. This issue is presented in relation to Poland. The article sets out the constitutional provisions which proclaim openness to European integration, as well as the union-friendly case-law of the Constitutional Tribunal (CT) until 2016. The CT jurisprudence at that time provided, however, for the possibility of refusing to apply EU law in exceptional situations, even though this never happened. Next, the article discusses endeavors of the new Polish authorities since the end of 2015 which drastically breach the rule of law in the field of the judiciary, as well as the measures taken by EU institutions to counteract these adverse phenomena. The Polish authorities argue that the competence to define the legal position of the judiciary has not been conferred on the Union and remains within the exclusive competence of the Member States. Such a stance was also taken by the politically dependent CT in April 2020. The PSPP judgment was therefore welcomed with joy by Polish politicians. There are major differences, however, between the rulings of the BVerfG and those of the Polish CT in its current composition, and the hopes pinned on the PSPP judgment by the Polish authorities are unfounded.

Józef Nowacki as a Theoretician of Normativism in Poland

2020 ◽  
Vol 45 (2-3) ◽  
pp. 248-267
Author(s):  
Sławomir Tkacz
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Case Law ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
The Third ◽  
German Speaking ◽  
Post War ◽  
Legal Theorist ◽  
Historical Sketch

The present paper aims to present an outline of the views of the Polish legal theorist Józef Nowacki (1923–2005). The claim put forward is that Nowacki was the chief representative of Hans Kelsen’s normativism in Polish legal theory. The paper begins with a short historical sketch presenting the reception of Hans Kelsen’s views in Polish jurisprudence, noting that in the post-war period the communist authorities believed that normativism was at odds with the then prevailing system of actually existing socialism. Drawing inspiration from German-speaking authors, Nowacki rejected the ideology prevailing in Poland at that time and became a staunch advocate of the normativist stance, in particular with regard to the theory of the legal system. The second part of the paper discusses Nowacki’s views regarding the concept of the rule of law, and the third and last part presents Nowacki’s critique of the case-law of the Polish Constitutional Court.

scholarly journals Upaya Menciptakan Produk Hukum Berkualitas Konstitusi Melalui Model Preventif Review

2019 ◽  
Vol 15 (4) ◽  
pp. 774
Author(s):  
Muhammad Reza Maulana
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Constitutional Court ◽  
Constitutional Order ◽  
The Law ◽  
Constitutional Right ◽  
The Republic ◽  
Constitutional Issue ◽  
Legal Product

Pada hakikatnya judicial review dilaksanakan demi terciptanya keseimbangan hukum dan terpenuhinya hak konstitusional setiap pemangku kepentingan untuk bertindak dan mengajukan permohonan pembatalan suatu undang-undang kepada Mahkamah Konstitusi dengan menyatakan undang-undang tersebut telah bertentangan dengan UUD RI 1945. Pengujian undang-undang terhadap UUD 1945 dilakukan dalam upaya penyempurnaan hukum yang berlandaskan konstitusi. Setiap undang-undang haruslah dilandasi oleh aturan dasar yang tidak hanya tercantum pada konsiderannya saja, melainkan dibuat serta dilaksanakan berlandaskan nilai dan norma konstitusionalitas. judicial review yang selama ini dilakukan oleh banyak pihak pada Mahkamah Konstitusi membuktikan bahwa kualitas produk hukum atau aturan hukum yang selama ini dilahirkan oleh pembuat undang-undang seringkali bertolak belakang dengan keteraturan hukum, sehingga diperlukan langkah hukum preventive demi menjaga integritas lembaga pembentuk undang-undang agar tidak dianggap melahirkan produk hukum yang asal-asalan. Oleh karena itu, di dalam penelitian ini akan mengkaji dan menginisiasi pembentukan produk hukum yang berkualitas konstitusi sehingga Mahkamah Konstitusi sebagai lembaga pengawal konstitusi memberikan kontribusi dengan cita konstitusi dan melahirkan produk hukum dengan kualitas konstitusi. Dalam penelitian ini metode yang yang digunakan adalah yuridis normatif dengan menggunakan pendekatan undang-undang dan konseptual. Hasil penelitian ini menggambarkan betapa pentingnya upaya preventive sebelum suatu aturan hukum kemudian ditetapkan, disahkan dan dilaksanakan, dimana ada persoalan konstitusionalitas terhadap implementasi suatu produk hukum yang kemudian oleh Mahkamah Konstitusi dinyatakan bertentangan dengan Undang-Undang Dasar Republik Indonesia 1945.Basically, judicial review has done to create a balance of law and to fulfill the constitutional right for every stakeholder to act and apply for application to constitutional court by stating the rule was contradicted to the constitution of Republic of Indonesia 1945. The application was made as an effort to perfect the law which is based on the constitution. Each rule has to be based on the basic rules, not only on its consideration but also is made and implemented in basic values and norms of contitutionality. Judicial review done by many people on constitutional court has proven that the quality of law product or rules of law made by the legislative often contradict with constitutional order of law, so it is necessary to take a step on preventive legal measurer to keep up the integrity of the rule maker of being judged making unqualified legal products. Therefore, this research reviews and initiates the production of law product so that the Constitutional Court can give preventive contribution on each legal products made, to be able to run with the ideals of the constitution and create legal products with constitution quality. This research used juridical normative method with legal and conceptual approaches. The results of this study illustrate how important preventive efforts before a rule of law are then set, ratified and implemented. In which there is a constitutional issue on the implementation of a legal product, that will be later declared by the Constitutional Court to be contradictory to the 1945 Constitution of the Republic of Indonesian.

scholarly journals THE CONCEPT OF PENAL MEDIATION FOR DEFAMATION DELICT IN THE INDONESIA ITE LAW AS A MANIFESTATION OF RESTORATIVE JUSTICE

2020 ◽  
Vol 9 (3) ◽  
pp. 363
Author(s):  
Yaris Adhial Fajrin ◽  
Ach. Faisol Triwijaya
Keyword(s):  
Rule Of Law ◽  
Alternative Dispute Resolution ◽  
Research Result ◽  
Self Esteem ◽  
Criminal Code ◽  
Criminal Cases ◽  
The Rule Of Law ◽  
Criminal Sanctions ◽  
The Right ◽  
The Impact

<em>The paper aimed to analyze the position of defamation as a complaint delict in the ITE Law and  the chances of applying penal mediation in the settlement of criminal defamation charges in the ITE Law. This research uses a normative legal research with qualitative analysis</em><em> techniques. The research result shows that defamation in the field of ITE is a complaint delict that the settlement of the case can be done through the Alternative Dispute Resolution (ADR) outside the court through penal mediation mechanism. The settlement of criminal cases through penal mediation has been in line with the direction of the renewal of Indonesian criminal law which is moving towards improving the impact of a criminal act as part of the purpose of criminalization. Penal mediation that promotes the values of consensus deliberation is also in line with the basic values of Pancasila, to encourage peace between the conflicting parties and improve the reputation, self-esteem, and dignity of victims damaged by defamation committed by the perpetrators. The advantages of penal mediation have not been followed by the rule of law of the event that regulates specifically the procedure of penal mediation so that not a few cases of defamation are ultimately decided by criminal sanctions to the perpetrators. Therefore, the mechanism of penal mediation needs to be regulated in the Indonesian Criminal Code in the future, to provide guarantees of a fair and beneficial criminal settlement for all parties, as well as a guarantee of the right to free responsible speech.</em>

scholarly journals Perlindungan Hukum Terhadap Hak Masyarakat Dalam Perjanjian Kerjasama Perkebunan Kelapa Sawit

2019 ◽  
Vol 2 (2) ◽  
pp. 175
Author(s):  
Hamdan Siregar
Keyword(s):  
Rule Of Law ◽  
Oil Palm ◽  
Legal Protection ◽  
Cooperation Agreement ◽  
The Rule Of Law ◽  
Oil Palm Plantation ◽  
Public Property ◽  
The Republic ◽  
The Government ◽  
The Right

The State of the Republic of Indonesia is a legal state which is contained in Article 1 Paragraph (3) of the 1945 Constitution, in the rule of law, the power in running the Government based on the rule of law, in Indonesia there have been many cooperation agreements in the field of plantation, in the establishment of plantation based on the principle legal certainty to protect the parties in the cooperation agreement between BUMD and PT.MTL where in the plantation management agreement is not running smoothly, causing conflict between the community with PT.MTL party. Based on the above issues, what is the legal relationship between the parties in the oil palm plantation cooperation agreement, how is the legal effect on the community rights in the oil palm plantation cooperation agreement, how is the legal protection of the community within the palm oil plantation agreement. This research is juridical sociological with the nature of research is descriptive analytical. Processing is done by editing and then analyzed by using qualitative analysis methode. From the result of the research, it can be concluded that (1) the occurrence of civil relation between the parties based on the cooperation agreement between BUMD and PT.MTL and letter of land delivery between the community and BUMD (2) due to law on community land in this cooperation agreement the transition of rights, from public property rights to State land. (3) the absence of legal protection of community land that has been submitted to the BUMD to be granted the Right to Use Enterprises

scholarly journals DISKURSUS SOSIOLOGI PUTUSAN MAHKAMAH KONSTITUSI NOMOR 46/PUU-VIII/2010

2021 ◽  
pp. 236-246
Author(s):  
Dwi Sakti Muhamad Huda ◽  
Dodi Alaska Ahmad Syaiful ◽  
Desi Wahyuni
Keyword(s):  
Legal Protection ◽  
Court Decision ◽  
Constitutional Court ◽  
Legal Reason ◽  
Kinship System ◽  
The Republic ◽  
The Right ◽  
Sociological Discourse ◽  
The Impact ◽  
Broad Scale

The Constitutional Court Decision Number 46 / PUU-VIII / 2010 annulled the provisions of Article 43 paragraph (1) of the Marriage Law because it contradicts the 1945 Constitution of the Republic of Indonesia and does not have binding legal force. The legal reason behind the rechtfinding is to emphasize that children born outside of marriage have the right to legal protection. This research was conducted with the aim of knowing the impact of the Constitutional Court Decision Number 46 / PUU-VIII / 2010 on one of the judges' judicial duties. This study uses a socio-legal approach with data collection techniques for study documents of literature materials. Based on the results of the analysis of the Constitutional Court Decision Number 46 / PUU-VIII / 2010, it does not contradict and intersect with the sociological discourse in accordance with the argumentum a contrario method. Then have coherence between the parental or bilateral kinship system with the Constitutional Court Decision No. 46 / PUU-VIII / 2010 in its application in Indonesia. This condition demands the intellectuality of Judges who are required to think on a broad scale and consider other disciplines in their legal findings.

scholarly journals ПОКРЕТАЊЕ ПОСТУПКА НОРМАТИВНЕ КОНТРОЛЕ ПРАВА У РЕПУБЛИЦИ СРБИЈИ

TEME ◽  
2019 ◽  
pp. 1419
Author(s):  
Bálint Pásztor
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Democratic Culture ◽  
Advantages And Disadvantages ◽  
Institutional Values ◽  
The Law ◽  
The Republic ◽  
The One

The author of the article analyzes the specificities of the normative control of the law, i.e. the procedure of assessing the constitutionality and legality of the law in the Republic of Serbia, with the aim of detecting historical and legal preconditions of the effective functioning of the rule of law. The historical perspective of the development of the constitutional judiciary in the Socialist Federal Republic of Yugoslavia and the Republic of Serbia, as well as the analysis of the experiences of various systems of control of constitutionality and legality, open the contextual, scientific-historical and pragmatic dimensions of understanding. The specificity of the system of normative control is reflected in its triplicity, meaning that three institutes are known that characterize different procedural possibilities (to initiate the process of assessing the constitutionality and legality of general acts). The paper is written in order to point out the dichotomy of the proposal and initiative of the procedure of the assessment of constitutionality and legality, as well as the advantages and disadvantages of the ex officio procedure. Furthermore, the author wanted to point out the essential and procedural differences between the proposal, the initiative and the constitutional complaint, especially analyzing the purpose of retaining the institute of the initiative in the light of the existence of the constitutional complaint and the fact that the initiative does not imply the automation of the initiation of proceedings. The dilemma that the article opens concerns the possibility that in the case of abolishing the initiative as an institution accessible to all, is it possible to preserve the democratic culture and the participation of citizens, furthermore is it possible to abolish the fundamental institutional values and freedoms of a legal state and the rule of law? The paper opens other issues of importance for the establishment of an effective constitutional architecture that concern: the width of the circle of authorized proposers of normative control before the Constitutional Court; the dual role of the constitutional judiciary: on the one hand protection of the Constitution, constitutionality and legality, on the other hand effective protection of human and minority rights and freedoms.

scholarly journals THE INCONSISTENCY OF THE CONSTITUTIONAL COURT ON THE APPLICATION OF THE HYUNDAI-INSPIRED INTERPRETATION Democratic Alliance v Speaker of the National Assembly (CCT86/15) [2016] ZACC 8

Obiter ◽  
2017 ◽  
Vol 38 (3) ◽  
Author(s):  
Themba Maseko
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Case Note ◽  
Constitutional Court ◽  
National Assembly ◽  
High Court ◽  
The Rule Of Law ◽  
The Republic ◽  
The One ◽  
Do So

The Hyundai-inspired interpretation obliges the courts to interpret, where possible, legislation in conformity with the Constitution of the Republic of South Africa 1996. This process involves taking into account the objects and purports of an Act and interpreting its provisions in the manner that complies with the constitutional values. Essentially, it ensures that courts give preference to an interpretation of legislation that is within the parameters of the provisions of the Constitution over the one that is not. However, courts do not apply the Hyundai-inspired interpretation if it cannot be ascribed to the provision of the legislation in question or if it is not reasonably possible for them to do so. Such situations include the Hyundai-inspired interpretation that unduly strains the text, or that obliges the court to read-in too many qualifications. In these situations, the courts have to declare the legislative provision in question unconstitutional and resort to the remedy of reading- in or notional severance. The Hyundai-inspired interpretation is evidenced in quite a number of cases. However, this case note critically dissects the manner in which the Constitutional Court applied it in the case of Democratic Alliance v Speaker of the National Assembly ((CCT86/15) [2016] ZACC 8).It concludes that the manner in which the Constitutional Court applied it, in this case, is inconsistent with the manner in which the Constitutional Court applied it in the case of Abahlali Basemjondolo six years earlier. When interpreting the word “disturbance” which section 1 of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act (4 of 2004) defined as “any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of Parliament or a House or Committee” and which the High Court had found to be too broad that it had the effect of finding a robust and controversial debate unconstitutional, the Constitutional Court unexpectedly read in too many qualifications to the word “disturbance” in conformity with the Constitution. The reason being, the Constitutional Court, six years earlier, found the approach of reading- in too many qualifications in conformity with the Constitution to be straining the text and to be contrary to the rule of law and the principle of separation of powers in the case of Abahlali Basemjondolo.

scholarly journals Fikih Pancasila (Reinterpretasi Patriotisme dalam Upaya Meneguhkan Keutuhan NKRI)

2019 ◽  
Vol 10 (2) ◽  
pp. 144-157
Author(s):  
Miftahul Ulum
Keyword(s):  
Rule Of Law ◽  
The State ◽  
The Rule Of Law ◽  
Public Benefit ◽  
A Value ◽  
Constitutional State ◽  
Religious Law ◽  
Law And Justice ◽  
The Republic ◽  
The Right

Mahfud MD states that the Pancasila State is a constitutional state and is final, even in terms of religious/fiqh law can be declared valid and correct. The results of the ijtihad of the ulama of ushul fiqh also mentioned that the choice of national law based on the Pancasila and the 1945 Constitution of the Republic of Indonesia was the right choice and was recognized syara'. Indonesia's legal state also accepts the spiritual value of religious law. Written law and all procedural provisions (rechtsstaaf) are accepted but must be put in order to uphold justice (the rule of law). Written provisions that prevent justice can be abandoned. This is confirmed in the provisions of Article 24 paragraph (1) of the 1945 Constitution which states that the function of the judicial authority is to enforce law and justice, and Article 28D paragraph (1) concerning the right to obtain legal certainty and Article 28H that the law must be built on the basis of justice benefits. Jurisprudence law with national law has the same substance in maintaining and encouraging the development of a legal system based on social justice and public benefit (al-manfa'ah al-ammah) as has also been voiced and championed by the founders of the state when they are compiling the state ideology, namely Pancasila. Those who are predominantly Muslim have an open attitude to respect and accommodate the interests of other faith groups and religions. Abdurrahman Wahid also emphasized that the founders of the nation (such as Ki Bagus Hadikusumo, Abdul Wahid Hasyim, Kahar Mudzakkar, Agus Salim, and Ahmad Subardjo) who were experts in the field of Jurisprudence had absorbed and adopted the principles and objectives of fiqh law that had a value of justice, benefit, humanity and shura in the Pancasila state system.

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