scholarly journals Penerapan Asas Audi Alteram Et Partem Pada Perkara Judicial review Di Mahkamah Agung

2019 ◽  
Vol 3 (1) ◽  
pp. 37
Author(s):  
Asep Syarifuddin Hidayat
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Judicial Power ◽  
Constitutional Court ◽  
The Public ◽  
Trial Process ◽  
The Supreme Court ◽  
The Law ◽  
The Impact

Abstract.Article 13 paragraph 1 of Act Number 48 of 2009 concerning Judicial Power states that all court hearings are open to the public, unless the Act says otherwise. Therefore, a judicial review trial must be open to the public. If the trial process of the judicial review is carried out in a closed manner, it can be considered a legal defect, because it is contrary to Article 13 paragraph (3) of the Law. The Law of the Supreme Court is not regulated that the judicial review is closed, because in the judicial review there is a need for openness or principle of audiences of parties or litigants must be given the opportunity to provide information and express their opinions, including the defendant as the maker of Legislation invitation under the law, so that the impact of the decision will need to be involved.Keywords: Judicial Review, Audi Alteram Et Partem Principle, Supreme Court, Constitutional Court Abstrak.Pasal 13 ayat 1 Undang-Undang Nomor 48 Tahun 2009 tentang Kekuasaan Kehakiman menyebutkan semua sidang pemeriksaan pengadilan terbuka untuk umum, kecuali Undang-Undang berkata lain. Oleh karena itu,  judicial review persidangan harus dilakukan terbuka untuk umum. Apabila proses persidangan judicial review ini dilakukan secara tertutup, maka dapat dinilai cacat hukum karena bertentangan dengan Pasal 13 ayat (3) Undang-Undang tersebut. Undang-Undang Mahkamah Agung pun tidak diatur bahwa persidangan judicial review bersifat tertutup, karena dalam judicial review perlu adanya keterbukaan atau asas audi alteram et partem atau pihak-pihak yang berperkara harus diberi kesempatan untuk memberikan keterangan dan menyampaikan pendapatnya termasuk pihak termohon sebagai  pembuat Peraturan Perundang-Undangan di bawah Undang-Undang sehingga akan terkena dampak putusan perlu dilibatkan.Kata Kunci: Judicial Review, Asas Audi Alteram Et Partem, Mahkamah Agung, Mahkamah Konstitusi.

IDEAS FOR STRENGTHENING SUPREME COURT JUDICIAL REVIEW AUTHORITY IN REVIEW OF REGIONAL REGULATIONS

2021 ◽  
Vol 9 (3) ◽  
pp. 505
Author(s):  
Muh Risnain
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Court Decision ◽  
Constitutional Court ◽  
The Public ◽  
Procedural Law ◽  
Preliminary Examination ◽  
Legal Implications ◽  
The Supreme Court ◽  
Legal Procedures

AbstractThe problem of judicial review of regional regulations in the Supreme Court is a serious academic and practical issue that needs to be resolved after the issuance of the decision of the Constitutional Court Number 137 / PUU-XIII / 2015. There are two problems in this paper, first, the legal implications of the Constitutional Court Decision Number 137 / PUU-XIII / 2015 on institutional and legal procedures for judicial review of regional regulations in the Supreme Court, secondly, how is the concept of the Supreme Court judicial review carried out through renewal of procedural law Trial Judicial Review in the Supreme Court? Based on the discussion above, we can conclude two things, first, the legal implications of the Constitutional Court Decision Number 137 / PUU-XIII / 2015 on the institutional and legal procedures for judicial review of regional regulations in the Supreme Court are the stronger and increasing authority of judicial review in Supreme Court. This decision ended the dualism of review of local regulations from judicial review by the Supreme Court and executive review of regional regulations by the Ministry of Home Affairs to only a judicial review by the Supreme Court, also potentially increasing the number of cases of judicial review in the Supreme Court. Second, the concept of the implementation of a judicial review by the Supreme Court is carried out through legal renewal of the judicial review proceedings in the Supreme Court by including several important substances, related to hearings that are open to the public, the existence of a preliminary examination, hearing, verdict and decision making that are more open and fair.Keywords: Regional Regulation, Judicial Review, and Reformation  ABSTRAKProblem judicial review Perda di Mahkamah Agung menjadi persoalan akademik dan praktikal serius yang perlu dipecahkan pascakeluarnya putusan Mahkamah konstitusi Nomor 137/PUU-XIII/2015. Terdapat dua masalah dalam tulisan ini, pertama, implikasi hukum Putusan Mahkamah konstitusi Nomor 137/PUU-XIII/2015 terhadap kelembagaan dan hukum acara judicial review perda di mahkamah agung, kedua, bagaimanakah konsep pelaksanaan judicial review perda oleh mahkamah agung dilakukan melalui pembaharuan hukum acara persidangan judicial review di mahkamah agung?. Berdasarkan pembahasan di atas maka dapat disimpulkan dua hal , pertama, implikasi hukum Putusan Mahkamah konstitusi Nomor 137/PUU-XIII/2015 terhadap kelembagaan dan hukum acara judicial review perda di mahkamah agung adalah semakin kuat dan meningkatnya kewenangan judicial review di mahakamah agung. Putusan ini mengakhiri dualisme review perda dari judicial review oleh MA dan executive review perda oleh kemendagri menjadi hanya judicial review oleh Mahkamah Agung, juga berpotensi meningkatkan jumlah perkara judicial review perda di mahkamah agung. Kedua, konsep pelaksanaan judicial review perda oleh mahkamah agung dilakukan melalui pembaharuan hukum acara persidangan judicial review di mahkamah agung dengan memasukan beberapa substansi penting, terkait sidang yang terbuka untuk umum, adanya proses pemeriksaan pendahuluan, pemeriksaan persidangan, pembuktian dan pengambilan putusan yang lebih terbuka dan fair.Kata Kunci : Peaturan Daerah, JudicialReview, dan Pembaharuan.

scholarly journals PASANG SURUT HUBUNGAN ANTARA MAHKAMAH AGUNG DENGAN KOMISI YUDISIAL DALAM SISTEM KETATANEGARAAN REPUBLIK INDONESIA

2012 ◽  
Vol 12 (1) ◽  
Author(s):  
Muhammad Fauzan
Keyword(s):  
Supreme Court ◽  
Judicial Power ◽  
Constitutional Court ◽  
The Supreme Court ◽  
The Law ◽  
The Republic ◽  
The Relationship

The relationship between the Supreme Court by the Judicial Commission in the Republic of Indonesia system is not harmonious, this is due to the first, the disharmony between the law on judicial power, including the law on Judicial Power, the law on the Supreme Court, the law on Constitutional Court and the law on the Judicial Commission. Both of the leadership character that exist in the Supreme Court and the Judicial Commission were too emphasizes in ego that one sector feel more superior than the others. To create a harmonious relationship between Supreme Court and Judicial Commission can be done by establishing intensive communication between both of them and by improvement in legislation. Keywords : relation, Supreme Court, Judicial Commission   

scholarly journals PEMBATALAN KEWENANGAN KOMISI YUDISIAL DALAM REKRUTMEN HAKIM DIKAITKAN DENGAN KONSEP INDEPENDENSI HAKIM

2016 ◽  
Vol 28 (3) ◽  
pp. 482 ◽  
Author(s):  
Zaki Ulya
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Constitutional Court ◽  
The Third ◽  
The Supreme Court ◽  
The Impact

AbstractRelationship problems Judicial Commission and the Supreme Court re-strained due to the addition of authority in the appointment of judges first instance courts. It is set in the third package of legislation, namely Law No. 49 of 2009, Law No. 50 of 2009 and Law No. 51 of 2009. The three laws are carried out judicial review to the Constitutional Court by Decision No. 43/ PUU-XIII/ 2015. The Constitutional Court stated that the expansion of the authority of the Judicial Commission against the constitution and interfere with the independence of judges as an independent institution. The purpose of this paper is to examine the decision is linked to the independence of judges and the impact of such decision to the authority of the Judicial Commission.IntisariDilematika hubungan Komisi Yudisial dan Mahkamah Agung kembali renggang akibat adanya penambahan wewenang dalam pengangkatan hakim peradilan tingkat pertama. Hal tersebut diatur dalam ketiga paket undang-undang yaitu Undang-Undang Nomor 49 Tahun 2009, Undang-Undang Nomor 50 Tahun 2009, dan Undang-Undang Nomor 51 Tahun 2009. Ketiga undang-undang tersebut dilakukan yudicial review ke Mahkamah Konstitusi dengan Putusan Nomor 43/PUU-XIII/2015. Mahkamah Konstitusi menyatakan bahwa perluasan wewenang Komisi Yudisial bertentangan dengan konstitusi dan mengganggu independensi hakim sebagai lembaga mandiri. Tujuan penulisan ini adalah untuk mengkaji putusan tersebut dikaitkan dengan independensi hakim serta dampak dari putusan tersebut terhadap wewenang Komisi Yudisial.

scholarly journals Hubungan Antara Partisipasi Masyarakat, Pembentukan Undang-Undang dan Judicial Review

2019 ◽  
Vol 9 (1) ◽  
pp. 168-193
Author(s):  
Riza Multazam Luthfy
Keyword(s):  
Public Policy ◽  
Public Participation ◽  
Supreme Court ◽  
Community Participation ◽  
Judicial Review ◽  
Policy Making ◽  
Constitutional Court ◽  
The Public ◽  
The Supreme Court ◽  
The Relationship

Community participation in national and state life today is an important study. This is because in a democratic country, public policy cannot be separated from public participation. This study seeks to discuss the relationship between community participation, the making of Act and the implementation of judicial review. The results showed that: (1) Public participation in the making of Act and the implementation of judicial review can: (a) Provide a better basis for public policy making in creating good governance. (b) Increase citizens' trust in the executive and legislative branches. (c) Save human resources, because with the involvement of the community in public policy making, the resources used in public policy socialization can be minimized. (2). Community participation in evaluating Act becomes an important activity, in order to establish control whether an Act is in accordance with its objectives or not. The public can submit a judicial review to the Supreme Court (MA) or the Constitutional Court (MK) if they judge that their rights have been impaired by certain Act. (3). The relationship between community participation and the making of Act and the implementation of judicial review is very close. Without community participation, the Act produced does not reflect the interests of the community and only prioritizes the interests of certain groups. The Constitutional Court (MK) and the Supreme Court (MA) will not conduct a judicial review if there is no request from the public.

Judicial Review: The Meaning of the Judicial Power

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
United States ◽  
Supreme Court ◽  
Judicial Review ◽  
The United States ◽  
Judicial Power ◽  
Contentious Issue ◽  
Judicial Supremacy ◽  
The Supreme Court ◽  
The Law

This chapter applies the concepts of interpretation and construction to the contentious issue of judicial review and examines the originalist evidence that overwhelmingly supports the judicial power to nullify unconstitutional laws. According to Article III of the Constitution: “The judicial Power of the United States, shall be vested in one Supreme Court, and in such Courts as Congress may from time to time ordain and establish.” The Constitution does not say explicitly that the “Supreme Court, and such inferior courts as may be established by Congress, shall have power to nullify a Law enacted by Congress and signed by the President if the Law is unconstitutional.” The absence of a clearly expressed grant of power has moved some critics of judicial review to question its legitimacy. The chapter also considers the concepts of judicial nullification and judicial supremacy as they relate to judicial review.

scholarly journals Kontroversi Putusan Mahkamah Konstitusi Membatalkan Kewenangan Komisi Yudisial Melakukan Rekrutmen Terhadap Hakim

SASI ◽  
2020 ◽  
Vol 26 (2) ◽  
pp. 266
Author(s):  
Suparto Suparto
Keyword(s):  
Supreme Court ◽  
Technical Aspect ◽  
Judicial Power ◽  
Constitutional Court ◽  
The Supreme Court ◽  
Judiciary Committee ◽  
Mutual Regulation ◽  
Implementation Guidelines ◽  
The Law ◽  
Selection Of

The Supreme Court conducted a selection of judges without the involvement of the Judiciary Committee. The Judiciary Committee deemed the recruitment was violating the law since it was not involving them in the process. While the Supreme Court viewed that the implementation guidelines for the mutual regulation of the Judiciary Committee and Supreme Court was yet to be existed, while the need for fresh judges was deemed as urgent at that time. Based on that premise, the Supreme Court conducted the recruitment and appointment of judges, several supreme court judges and registrars were conducting a judicial review on the Law No. 49 of 2009, Law No. 50 of 2009, and Law No. 51 of 2009.The Constitutional Court granted their plea with Stipulation No. 43/PUU-XIII/2015.One of the points of considerations of the constitutional judges was the involvement of Judiciary Committee on the recruitment of judges was deemed to disrupt the independency of the Supreme Court. Actually, the involvement of the Judiciary Committee in the selection of judges will not intrude the independency of the judicial power or the judge itself. The independency of judges will be disrupted if the Judiciary Committee is intervening with the technical aspect of judicial power which includescross-examination, trial, and the verdict on a case.

scholarly journals The Harmonization of Authority of Supreme Court, Constitution Court, and the Judicial Commission

FIAT JUSTISIA ◽  
2018 ◽  
Vol 12 (1) ◽  
pp. 45
Author(s):  
La Ode Angga La Ode Angga
Keyword(s):  
Supreme Court ◽  
The State ◽  
Judicial Power ◽  
Constitutional Court ◽  
Fifth Amendment ◽  
Absolute Power ◽  
Dead End ◽  
The Supreme Court ◽  
The Law ◽  
The Republic

The Harmonization of the Authority between Supreme Court (MA) institutions The Constitutional Court (MK) and Judicial Commission (KY) is a must. It is done by way of revision of the Law of the Supreme Court, MK and KY for the harmonization of authority. However, if the revision finds a dead end, then the fifth amendment (5) of the 1945 Constitution of the State of the Republic of Indonesia (UUDNRI 1945) is limited to be reconstructed by the provision of Article 24B paragraph (1) of the 1945 Constitution by affirming the authority of KY clear so that it is not considered to interfere with judicial power. The harmonization can be done by adding an institution that oversees the authority of the Constitutional Court by performing reconstruction in Article 24B paragraph (1) so that there is no more tendency of absolute power. The supervised judge is a judge of the Supreme Court and the Constitutional Court.  Keywords: Harmonization, Authority, Supreme Court, Constitutional Court, Judicial Commission.

scholarly journals KEWENANGAN BADAN PENGAWAS PEMILU DALAM PENANGANAN PELANGGARAN ADMINISTRASI DITINJAU DARI PERSPEKTIF SISTEM PERADILAN INDONESIA

2021 ◽  
Vol 2 (2) ◽  
pp. 74-85
Author(s):  
Alasman Mpesau
Keyword(s):  
Supreme Court ◽  
Descriptive Analysis ◽  
Supervisory Board ◽  
Electoral System ◽  
General Election ◽  
Judicial Power ◽  
Constitutional Court ◽  
State Institutions ◽  
The Supreme Court ◽  
Religious Courts

In the General Election and Regional Head Election Law, the Election Supervisory Board (Bawaslu) has the authority supervisory to each Election stages, it is the center for law enforcement activities of the Election (Sentra Gakkumdu) to criminal acts and carrying out the judicial functions for investigating, examining, and decided on administrative disputes of General Election and Regional Head Election.  With the Bawaslu’s authority then placed as a super-body institution in the ranks of the Election Management Body, due to its essential role in building a clean and credible electoral system, it also has potential for abuse of power within it. In Law no. 48 of 2009 concerning Judicial Power has defined state institutions that have the authority to administrate judicial functions. These are the Supreme Court and Judicial Bodies that under its lines of general court, Religious Courts, Military Courts, Administrative Court (PTUN) and the Constitutional Court. The research method is normative juridical, that focuses on the analysis of the laws and regulations on General Election, Regional Head Elections and the Law on Judicial Power. The analytical tool is descriptive analysis, by describing the main issues, an analysis is carried out that was supported by case-approach related to the research. The study concludes that Bawaslu in carrying out judicial functions in its position as a semi-judicial institution has not a hierarchical relationship to the Supreme Court (MA) and the Constitutional Court (MK); however, what does exist is functional relationship.

scholarly journals The Attempt to Human Rights Protection Through Judicial Review in Indonesia

2018 ◽  
Vol 54 ◽  
pp. 02006
Author(s):  
Riris Ardhanariswari ◽  
Muhammad Fauzan ◽  
Ahmad Komari
Keyword(s):  
Human Rights ◽  
State Government ◽  
Judicial Review ◽  
Stable State ◽  
Judicial Power ◽  
Constitutional Court ◽  
Human Rights Protection ◽  
The Law ◽  
Law And Justice ◽  
Parliamentary Supremacy

The Constitutional Court is one of the perpetrators of judicial power, in addition to the Supreme Court as referred to in Article 24 paragraph (2) of the 1945 Constitution. The Constitutional Court is also bound to the general principle of an independent judicial power, free from the influence of other institutions in enforcing law and justice. The Constitutional Court is the first and last level judicial body, or it can be said that it is the only judicial body whose decisions are final and binding. The existence of the Constitutional Court is at the same time to maintain the implementation of a stable state government and is also a correction to the experience of constitutional life in the past caused by multiple interpretations of the constitution. Judicial review towards the constitution is one of the authorities of the Constitutional Court that attracted attention. This shows that there has also been a shift in the doctrine of the parliamentary supremacy towards the doctrine of the supremacy of the constitution. The law was previously inviolable, but now the existence of a law is questionable in its alignment with the Constitution. The authority to examine the Law towards the Constitution is the authority of the Constitutional Court as the guardian of the constitution. This authority is carried out to safeguard the provisions of the Act so that it does not conflict with the constitution and / or impair the constitutional rights of citizens. This shows that the judicial review towards the Constitution carried out by the Constitutional Court is basically also to provide protection for human rights.

A Curious Decision by Zambia’s Highest Court: Six Years Imprisonment for Civil Contempt?

2019 ◽  
Vol 12 (2) ◽  
pp. 115-138
Author(s):  
Christopher Phiri
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Judicial Power ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
The Common ◽  
The Law

Abstract On 23 November 2018, the Supreme Court of Zambia delivered a judgement which suggests that Zambian judges have virtually unbridled power to move on their own motion to punish for contempt of court anyone who criticises their judicial decisions. This article considers that judgement. It argues that whilst justice might well have been done in the case in question, it was certainly not seen to be done. Two main reasons are given for this argument. First, the judges appeared to have acted both as prosecutors and adjudicators in their own cause when it was neither urgent nor imperative to act immediately on their own motion. Second, the classification by the Court of the contempt in question as civil contempt rather than criminal contempt is alien to the common law world. The article culminates in a clarion call for the Zambian legislature to intervene and clarify the law of contempt of court to avert capricious and unbridled invocation of the judicial power to punish for contempt.

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