scholarly journals Tafsir Wewenang Seponering Jaksa Agung Pasca Putusan Mahkamah Konstitusi Nomor 29/PUU-XIV/2016

2021 ◽  
Vol 4 (2) ◽  
Author(s):  
Ilham Dwi Rafiqi
Keyword(s):  
Public Interest ◽  
Attorney General ◽  
State Power ◽  
Constitutional Court ◽  
Court Decisions ◽  
Legal Certainty ◽  
The Public ◽  
Legal Implications ◽  
The Republic ◽  
Definition Of

The affirmation of the attorney general's authority in the Elucidation of Article 35 letter C of the Indonesian Prosecutor's Law after the decision of the Constitutional Court Number 29/PUU-XIV/2016 still leaves problems and has the potential to cause new legal problems. This research will look at and analyze how the authority of the Attorney General after the decision is as well as how the concept of an ideal arrangement that ensures legal certainty. This research uses normative juridical research with a statutory approach and case studies which in this case are court decisions. The results showed that after Constitutional Court decision, there was a change in the meaning of the Elucidation of Article 35 letter c of the Republic of Indonesia Prosecutor's Law. Based on the results of these interpretations and decisions, the legal implications that followed were related to the conditions for setting aside cases in the public interest, namely in setting aside cases in the public interest, the Attorney General was required to 'require' first to pay attention to suggestions and opinions from state power agencies that have relationship with the problem. The concept of an ideal arrangement that can guarantee legal certainty as an indicator to measure and assess the implementation of the Attorney General's obligations can be done by clarifying the definition of "state power agencies" for which advice and opinions are requested and making criteria for the term "public interest".

scholarly journals Kedudukan Hukum Deponeering dalam Sistem Peradilan Pidana

2021 ◽  
Vol 2 (1) ◽  
pp. 17-29
Author(s):  
Desi Ratnasari ◽  
Sahuri Lasmadi ◽  
Elly Sudarti
Keyword(s):  
Public Interest ◽  
Attorney General ◽  
Legal Research ◽  
Conceptual Approach ◽  
The Public ◽  
Procedural Law ◽  
Procedure Code ◽  
Legal Implications ◽  
The Law ◽  
The Republic

This article aims to identify and analyze the legal implications and analyze the regulation of public interest as a condition for implementing deponeering by the Attorney General for the sake of the public interest in the perspective of the development of criminal procedural law. This research is a legal research, obtained from statutory studies (statute approach), concept (conceptual approach), cases. The result of this research is that there is discrimination against equality before the law contained in Article 27 Paragraph (1) of the 1945 Constitution of the Republic of Indonesia and can trigger misinterpretation by the Attorney General. Then in its implementation there is no clear regulation regarding the application of the opportunity principle related to the authority of the attorney general in the implementation of case waiver (deponeering) for the public interest in the Criminal Procedure Code.  Abstrak Artikel ini bertujuan untuk mengetahui dan menganalisis implikasi hukum serta menganalisis terhadap regulasi kepentingan umum sebagai syarat pelaksanaan pengesampingan perkara (deponeering) oleh Jaksa Agung demi kepentingan umum dalam prespektif perkembangan hukum acara pidana.  Penelitian ini merupakan penelitian hukum, yang diperoleh dari studi perundang-undangan (statute approach), konsep (conceptual approach), kasus. Hasil dari penelitian ini adalah adanya diskriminatif terhadap equality before the law yang terdapat dalam Pasal 27 Ayat (1) Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 dan dapat memicu salah tafsir oleh Jaksa Agung. Lalu di dalam pelaksanaannya belum terdapat regulasi yang jelas mengenai penerapan asas oportunitas yang berhubungan dengan kewenangan jaksa agung dalam pelaksanaan pengesampingan perkara (deponeering) demi kepentingan umum di dalam Kitab Undang-Undang Hukum acara Pidana (KUHAP). 

scholarly journals THE PRINCIPLES OF DEMOCRACY IN ADOPTION OF NORMATIVE ACTS

2018 ◽  
Vol 1 (10) ◽  
pp. 77
Author(s):  
Ilga Krampuža
Keyword(s):  
Public Interest ◽  
Analytical Method ◽  
Case Law ◽  
Adoption Process ◽  
Constitutional Court ◽  
Legal Doctrine ◽  
The Public ◽  
State Administration ◽  
The Republic ◽  
Present Description

The report describes the current problem - the disproportionately large increase in the number of normative acts. Such a situation frightens the society, creates distrust to the state administration and causes errors in adoption of normative acts, which shall be corrected. Therefore, the excessive increase in the number of normative acts is negative. Before adopting the normative acts, it is proposed to consider all possibilities for solving a specific problem. The importance of the principle of democracy in reducing the increase of normative acts has been raised. The aim of the report is to provide a general insight into the tasks of normative acts; to update general guidelines on the basis of the principle of democracy, which confirms that the adoption of normative acts should be evaluated in conjunction with the consideration of other criteria for solving a specific problem.The tasks of the research are the following: to update the connection of the adoption of normative acts with the essence of the principle of democracy; to analyse the growth rates of normative acts; to study the reasons for the increase in the number of normative acts; to put forward the principle of democracy as a limiter for the growth of normative acts. In the research, the grammatical method is used to present description of the normative acts adoption process, as well as to provide review of the reasons for the increase in the number of normative acts. The systemic method is used to assess the possibilities of interpreting the principle of democracy, based on the case law of the Constitutional Court of the Republic of Latvia and the legal doctrine. The analytical method is used to describe the disproportionately rapid increase of normative acts. The analytical method is applied to evaluate the possibilities of using the principle of democracy to reduce the number of normative acts. Using the teleological method, an increase in the number of normative acts is considered in the context of the essence of the principle of democracy.The results of the research are reflected in the main conclusions: the increase in the number of normative acts in the recent years has to be regarded as unreasonable and contrary to the public interest; the principle of democracy requires that solution to the problem, firstly, shall be sought for in the legal system; based on the principle of democracy, the usefulness, purpose and implementation of the public interest in adoption of new normative acts should be considered. 

scholarly journals Legal Implications of the Norms Conflict in the Governance Regulation of the Water Resources

2020 ◽  
Vol 9 (1) ◽  
pp. 17-23
Author(s):  
Indro Budiono ◽  
Moch. Bakri ◽  
Moh. Fadli ◽  
Imam Koeswahyono
Keyword(s):  
Water Resources ◽  
Public Interest ◽  
The State ◽  
Legal Research ◽  
Conceptual Approach ◽  
Colonial Era ◽  
The Public ◽  
The People ◽  
Legal Implications ◽  
The Republic

AbstractArrangements for water resources or irrigation governance designs from the colonial era to the reform order always cause controversies and problems. In physiological issues, there is not known change in the meaning of water as a public good being a private good. Theoretical problems, the basis for the design of the theory of management of chaotic water resources is in line with the existence of Law No. 17 of 2019 concerning water resources. The purpose of this study is to analyze and find the implications of norm conflicts in water resources governance arrangements, both vertically between Law No. 17 of 2019 on Water Resources with Article 33 (2) and (3) with the 1945 NRI Law, and horizontally with RI Law Number 5 of 1960 concerning Basic Regulations on Agrarian Principles. This research uses normative legal research methods with various approaches, including the statute approach, historical approach and conceptual approach. The analytic part of this research is using an investigation strategy. The results showed that the article in Law No. 17 of 2019 proves that the production branches that are important for the State that control the public interest can not be controlled by the State, therefore the article in Law No. 17 Hold 2019 is contrary to Article 33 paragraph (2) and (3) of the 1945 Constitution of the Republic of Indonesia cause that water is a State asset and national assets cannot be used so much for the prosperity of the people, therefore article 46 paragraph (1), Article 47, Article 48, Article 49, Article 51, Article 52 Law No.17 of 2019 is contrary to Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia.

scholarly journals LEMBAGA DEPONERING SEBAGAI IMPLEMENTASI ASAS OPORTUNITAS PERKARA PIDANA DI INDONESIA

2020 ◽  
Vol 2 (3) ◽  
pp. 331-345
Author(s):  
Gema Yudha
Keyword(s):  
Research And Development ◽  
Public Interest ◽  
Attorney General ◽  
Secondary Data ◽  
Primary Data ◽  
Nation State ◽  
The Public ◽  
Negative Effect ◽  
The Republic ◽  
Formal Requirements

Deponering or exclusion of a criminal case for the sake of interest is the authority of the Attorney General of the Republic of Indonesia in accordance with the provisions contained in Article 35 sub c of Law No. 16 of 2004 concerning the Basic Provisions of the Attorney General's Office of the Republic of Indonesia, as well as their explanations. Leaving aside the case as referred to in this provision is the implementation of the principle of opportunity in which a case (criminal act) when it is submitted to a trial is expected to cause a shock in the community or by trial the case will have a negative effect on the wider community, as happened in the case of Bibit Samad Rianto and Chandra M. Hamzah that occurred in 2009 until 2011. The problem studied was about the position of deponering institutions as the implementation of the principle of opportunity by the Attorney General and what were the reasons for the Attorney General to decide on deponering of Bibit Samad Rianto and Chandra M. Hamzah cases? This research is supported by primary data secondary data in the form of interviews with the parties in the Center for Research and Development of the Attorney General's Law. From the results of research and analysis obtained that the existence of deponering institutions as the implementation of the principle of opportunity by the Attorney General is a prosecution must be done if formal requirements have been met and must also be deemed necessary in the public interest, so that the prosecutor will not demand a case before the elements of public interest has been fulfilled. And the reason the Attorney General decided to deponering the Bibit Samad Rianto and Chandra M. Hamzah case was based on the consideration that if the case in the name of the suspects Bibit Samad Rianto and Chandra M. Hamzah was transferred to the court, it would have the effect of disturbing the performance of the Corruption Eradication Commission (KPK). as well as managerial in carrying out their duties and authorities, so as to prejudice the public interest, namely the interests of the nation, state or society and also in order to protect efforts to eradicate corruption as a whole.

scholarly journals LIMITATIF KEWENANGAN JAKSA PENUNTUT UMUM DALAM TINDAK PIDANA KORUPSI

2020 ◽  
Vol 8 (9) ◽  
pp. 1324
Author(s):  
Novi Mardihana Sari ◽  
I Nyoman Budiana
Keyword(s):  
Research Method ◽  
Attorney General ◽  
Public Prosecutor ◽  
Legal Certainty ◽  
Legal Research ◽  
Conceptual Approach ◽  
The Public ◽  
The Republic

Tulisan ini bertujuan untuk mengetahui pengaturan kewenangan jaksa penuntut umum dalam tindak pidana korupsi, serta mengkaji dan menganalisis limitative kewenangan jaksa dalam tindak pidana korupsi, sudahkah mencerminkan adanya kepastian hukum, keadilan dan kemanfaatan sesuai dengan tujuan hukum di Indonesia. Metode yang digunakan dalam tulisan ini menggunakan metode penelitian hukum normatif dengan pendekatan undang-undang (Statute approach) dan pendekatan konseptual (Conceptual approach). Hasil penelitian menunjukkan bahwa dalam penanganan tindak pidana korupsi, Jaksa berwenang melakukan penyelidikan, penyidikan dan penuntutan. Hal-hal yang menjadi limitatif kewenangan jaksa penuntut umum dalam penanganan tindak pidana korupsi diatur dalam Kitab Undang-Undang Hukum Acara Pidana, Undang-Undang Nomor 16 Tahun 2004 tentang Kejaksaan Republik Indonesia, serta Undang-Undang Nomor 31 Tahun 1999 tentang Pemberantasan Tindak Pidana Korupsi. This paper aims to determine the regulation of the authority of the public prosecutor in criminal acts of corruption, and to study and analyze the limitative authority of prosecoturs in criminal acts of corruption, has it reflected the existence of legal certainty, justice and usefulness in accordance with the legal objectives in Indonesia. The method used in this paper uses the normative legal research method with the statute approach and conceptual approach. The results showed that in handling corruption, the prosecutor has the authority to conduct investigations, investigations and prosecutions. Matters which become the limitative authority of public prosecutors in handling corruption are regulated inKitab Undang-Undang Hukum Acara Pidana, Undang-Undang Nomor 16 tahun 2004 concerning the attorney general of the republic of Indonesia, Undang-Undang Nomor 31 Tahun 1999 concerning eradication of criminal acts.

Оксана Кукуруз, Взаимодействие политики и права в процессе общественной трансформации в Украине и Республике Польша

2021 ◽  
pp. 158-162
Author(s):  
Ivanna Kyliushyk
Keyword(s):  
Public Interest ◽  
Book Research ◽  
Social Transformation ◽  
Common Goal ◽  
The Real ◽  
The Public ◽  
The Creation ◽  
The Republic ◽  
Effective Development ◽  
Politics And Law

The author of the book research the interaction of politics and law as two important social regulators that have a common goal the effective development of society. The author defines the real models of interaction between politics and law, which have formed in Ukraine and the Republic of Poland in the process of social transformation, and the creation of an appropriate model, which should be based on the goal of ensuring the public interest.

scholarly journals The Attorney General, Politics, and the Public Interest. Contributions to an Evolving Constitutional Convention

2022 ◽  
pp. 1-20
Author(s):  
Michael Murphy
Keyword(s):  
Quality Control ◽  
Public Interest ◽  
Prime Minister ◽  
Attorney General ◽  
Criminal Prosecution ◽  
Prosecutorial Discretion ◽  
Constitutional Convention ◽  
The Public ◽  
Normative Framework

Abstract The prosecutorial independence of the Attorney General (AG) is a firmly established constitutional convention in Canada, but it is also an evolving convention, subject to ongoing contestation and debate. This article is a contribution to that debate. It defends a normative constitutional framework wherein the AG’s authority to make final decisions in matters of criminal prosecution is balanced against a corresponding duty to consult with cabinet and the prime minister on the public interest implications of prosecutorial decisions when the circumstances warrant. Within this normative framework, respectful contestation and debate amongst ministers, the prime minister, and the AG in determining the public interest merits of prosecution is welcomed, even encouraged, and if conducted with the requisite integrity, objectivity, and transparency, it is regarded not as a threat but as a valuable check and balance on AG independence and an indispensable form of quality control on the exercise of prosecutorial discretion.

scholarly journals Public Interest Opposite the Freedom of Contractual Will in Administrative Contracts in the Republic of Albania

2017 ◽  
Vol 6 (s2) ◽  
pp. 37-48
Author(s):  
Artan Spahiu
Keyword(s):  
Public Interest ◽  
Legal Framework ◽  
The State ◽  
Private Law ◽  
Legal Analysis ◽  
Administrative Contract ◽  
The Public ◽  
General Arrangement ◽  
Role Of The State ◽  
The Republic

Abstract The protection of the public interest is the main principle governing the activity regulation of the administrative bodies. This activity, traditionally, has been developed through administrative acts, as an expression of the unilateral and authoritarian willpower of public authority, which creates legal consequences. The administrative act has been and remains the most important instrument for the administration bodies to accomplish their mission, but it is no longer effective. Particularly this lack of efficiency is noticed in recent years when the development of the economy and the needs of the evergrowing society have prompted the administration to adapt its activity by making use of other mechanisms “borrowed” from private law. An important part of public activity can also be achieved through the contract as a way that brings the state closer to the private, mitigating its dominant position and leaving space for the efficiency of private activity to fulfil public engagements. Such contracts today are known as “administrative contracts” or “public contracts”. The terms mentioned above are instruments that establish legal relations, for the regulation of which the principle of public interest is opposed and competes with the principle of freedom of the contractual willpower. The regulation of these types of contracts is reached through the private law, which constitutes the general normative framework of contracts (lex generalis) even for the administrative contracts. But this general arrangement will have effect for as long as it does not contradict the imperative provisions of the specific act of public law (lex specialis), which regulates the administrative procedure for the completion of these contracts. This paper aims to bring to the spotlight the way our legislation predict and regulates administrative contracts, by emphasising particularly the features of their dualistic nature. The coexistence and competition of the principles of the freedom of contractual willpower and the protection of the public interest, evidenced in administrative contracts, is presented in this paper through the legal analysis of the Albanian legal framework which regulates these contracts. Under the terms when the role of the state in providing public services tends to increase and our legislation aims the harmonization in accord with the European legislation, it is necessary to improve the administrative contract regulation and extend its scope of action.

scholarly journals The right to peaceful enjoyment of property and the security measure of the forfeiture of cash in the jurisprudence of the Serbian Constitutional Court: Certain uncertainty

Pravni zapisi ◽  
2020 ◽  
Vol 11 (2) ◽  
pp. 620-644
Author(s):  
Tamás Korhecz
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Public Interest ◽  
Cash Transfer ◽  
Constitutional Court ◽  
The Public ◽  
Cross Border ◽  
Security Measure ◽  
European Court ◽  
The Right

The right to peaceful enjoyment of property is a first-generation human right, protected by the international and domestic law of the highest rank. This is not an absolute right - the European standards of protecting property rights allow possible interferences prescribed by law. The interferences can be made in the public interest but only under the assumption that the proportionality between the public interest and property rights of individuals at stake is established. Forfeiture of undeclared cash the individuals are transferring across state borders, together with imposing fines for a misdemeanor, represent an interference with individuals' property rights. The EU Member States do not share an identical system of sanctions for this petty offense, but there is a tendency of unification related to the monitoring, registering, and sanctioning of undeclared, cross-border, individual cash transfer. The case-law of the European Court of Human Rights has established rather precise criteria for distinguishing permitted from unpermitted interferences in cases of undeclared cross-border cash transfers. The Serbian Constitutional Court has been faced with several constitutional complaints regarding alleged unconstitutionally of the imposed security measure amounting to the forfeiture of undeclared cash physically transferred across the state borders. The Constitutional Court has ruled inconsistently on the matter. Although it has regularly referred to the European Court of Human Rights' relevant decisions, it fails to be consistent in following the Strasbourg Court's rulings. In this article, the author has suggested that the legal certainty principle requires the Constitutional Court to consistently interpret the constitutional rights and be systematic in following Strasbourg. Only in this way, the Constitutional Court can help regular courts effectively to harmonize the interpretation and application of laws with the constitutional and international human rights standards regarding property rights.

Eisenhower’s executive privilege and the public interest

2019 ◽  
pp. 54-84
Author(s):  
Kevin M. Baron
Keyword(s):  
Public Interest ◽  
Attorney General ◽  
Executive Branch ◽  
Executive Power ◽  
Freedom Of Information ◽  
Government Information ◽  
Executive Orders ◽  
White House ◽  
The Public ◽  
The Creation

This chapter delves into the depths of one of the most important developments within modern American politics, the creation and institutionalization of executive privilege. In facing a fervent Congress in the grips of McCarthyism, Eisenhower issued a letter denying testimony to the Senate for the Army-McCarthy hearings. His letter included a memo from Attorney General Brownell that claimed the president had an inherent constitutional privilege to deny information to Congress or the public if it was in the public interest and for national security. This action institutionalized the Cold War Paradigm in the executive branch and created an extra-constitutional power for the president. Eisenhower issued several executive orders concerning classification and public dissemination of government information, along with the creation of the Office of Strategic Information (OSI) within the Commerce Department to oversee these policies. Eisenhower claimed historic precedent to justify his inherent constitutional power, regardless, it showed a learned response that changed executive power. Congress would respond in 1955 by creating the Special Subcommittee on Government Information chaired by Rep. John Moss, given jurisdiction for oversight on all executive branch information policies and practices. With the issue of freedom of information institutionalized in Congress, a 12-year legislative power struggle would unfold between Congress and the White House ending with the passage of the Freedom of Information Act in 1966.

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