A Study on the Constitutional Review on the Art. 53 of Yushin Constitution and Urgent Measures - Focusing on the Decision of the Constitutional Court, 2010Hun-Ba 70･132･170 and the Decision of the Supreme Court, 2010Do5986 -

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.

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LEGAL PROBLEMS OF DUALISM OF JUDICIAL REVIEW SYSTEM IN INDONESIA

Jurnal Dinamika Hukum ◽

10.20884/1.jdh.2016.16.2.535 ◽

2016 ◽

Vol 16 (2) ◽

Author(s):

Pan Mohamad Faiz

Keyword(s):

Supreme Court ◽

Judicial Review ◽

Current System ◽

Legal Issues ◽

Constitutional Court ◽

Review System ◽

Constitutional Review ◽

Legal Problems ◽

The Supreme Court ◽

Laws And Regulations

Indonesia implements dualism of judicial review system because there are two different judicial institutions that are granted the authority to review laws and regulations, namely the Constitutional Court and the Supreme Court. This research aims to analyse the problems caused by the dualism of judicial review system. It found two main legal problems of the current system. First, there is an inconsistency of decisions concerning judicial review cases for the same legal issues decided by the Constitutional Court and the Supreme Court. Second, there is no mechanism to review the constitutionality of People’s Consultative Assembly (MPR) decisions and regulations under the level of law. Based on these findings, this research suggests that the authority to review all laws and regulations should be integrated under the jurisdiction of the Constitutional Court.Keywords: Constitutional Court, Constitutional Review, Judicial Review

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KEKUATAN MENGIKAT PUTUSAN CONSTITUTIONAL REVIEW MAHKAMAH KONSTITUSI TERHADAP MAHKAMAH AGUNG

MASALAH-MASALAH HUKUM ◽

10.14710/mmh.44.4.2015.511-520 ◽

2015 ◽

Vol 44 (4) ◽

pp. 511

Author(s):

Rian Van Frits Kapitan

Keyword(s):

Supreme Court ◽

Historical Perspective ◽

Constitutional Court ◽

Court Ruling ◽

Supreme Court Ruling ◽

Medical Practices ◽

Constitutional Review ◽

Binding Force ◽

The Supreme Court ◽

Protected Object

The Existence of Supreme Court ruling that punishes dr. Bambang suprapto.Sp.M.Surg. using article 76 of law no 29 of 2004 on medical practices that had previously been cancelled by the Constitutional Court it self has proved that the Supreme Court has ruled constitutional the constitutional court's decision. This paper attempts to justify that by reason of any Constitutional Court still has binding force for the Supreme Court. It is based on four perspectives namely: 1. Historical perspective 2. Perspective protected object 3. Perspective functional 4. And normative perspectivAdanya putusan Mahkamah Agung yang menghukum dr. Bambang Suprapto, Sp.M.Surg mengunakan Pasal 76 Undang-Undang Nomor 29 Tahun 2004 tentang Praktek Kedokteran yang sebelumnya telah dibatalkan oleh Mahkamah Konstitusi dengan sendirinya telah membuktikan bahwa Mahkamah Agung telah mengesampingkan putusan constitutional review Mahkamah Konstitusi. Tulisan ini mencoba untuk menjustifikasi bahwa dengan alasan apapun putusan constitutional review Mahkamah Konstitusi tetap mempunyai kekuatan mengikat bagi Mahkamah Agung. Hal ini didasarkan atas empat perspektif, yaitu : 1.perspektif historis, 2.perspektif objek yang dilindungi, 3.perspektif fungsional, dan 4.perspektif normatif

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Constitutionality of the European Stability Mechanism in Estonia: Applying Proportionality to Sovereignty

European Constitutional Law Review ◽

10.1017/s1574019612001174 ◽

2013 ◽

Vol 9 (2) ◽

pp. 335-354 ◽

Cited By ~ 3

Author(s):

Carri Ginter

Keyword(s):

Supreme Court ◽

Green Light ◽

Constitutional Court ◽

Member States ◽

Constitutional Review ◽

The Supreme Court ◽

European Stability Mechanism ◽

The Republic ◽

Budgetary Decisions ◽

The Guardian

The Supreme Court en banc was forced to make a rushed judgment in a situation of confusion, uncertainty and absence of legal certainty prevailing in the Estonian and the EU legal environment.Dissenting justice Jaak LuikOn 12 September 2012 the Bundesverfassungsgericht gave the green light for Germany to ratify the Treaty Establishing the European Stability Mechanism (ESM Treaty), but made ratification conditional upon international law arrangements to be made to guarantee an interpretation of the ESM Treaty which would be in line with the German Grundgesetz. Although the constitutional challenge in Germany, which is the largest ‘donor’ to the ESM, was certainly of core importance as to whether the member states would be able to launch the mechanism at all, the constitutional challenges in other member states also deserve academic attention. The reference for a preliminary ruling by the Supreme Court of Ireland raised serious questions concerning the conformity of the ESM Treaty with EU law. In its Pringle decision the Court of Justice dismissed the concerns raised in the reference as being unfounded.This article focuses on the compatibility of the ‘emergency voting’ mechanism set out in Article 4(4) ESM Treaty with the principles of democracy, the rule of law and sovereignty raised before the Supreme Court of Estonia. The Constitution of the Republic of Estonia [Eesti Vabariigipõhiseadus] (henceforth: the Constitution) and the Acts of the Republic of Estonia do not foresee a separate constitutional court or the possibility of an individual constitutional petition. Thus, the issue of the constitutionality of the emergency voting procedure contained in the ESM Treaty was raised ex officio in abstract constitutional review proceedings by the Estonian Chancellor of Justice [Õiguskantsler], which ‘in Estonia combines the function of the general body of petition and the guardian of constitutionality.’ The petition for review focused on the fact that substantial budgetary decisions could be made in the future under the emergency voting procedure without the involvement of the Estonian parliament. According to the petition, ‘[w]ith accession to the Treaty the budgetary policy choices of the Riigikogu will diminish.’

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DEKADENSI PEMILIHAN HAKIM AGUNG OLEH DPR RI

Bilancia: Jurnal Studi Ilmu Syariah dan Hukum ◽

10.24239/blc.v14i1.509 ◽

2020 ◽

Vol 14 (1) ◽

pp. 73-104

Author(s):

Rustam Magun Pikahulan

Keyword(s):

Supreme Court ◽

Rule Of Law ◽

House Of Representatives ◽

Good Governance ◽

Constitutional Court ◽

Due Diligence ◽

The Rule Of Law ◽

The Supreme Court ◽

Institutional Status ◽

The Government

Abstract: The Plato's conception of the rule of law states that good governance is based on good law. The organization also spreads to the world of Supreme Court justices, the election caused a decadence to the institutional status of the House of Representatives as a people's representative in the government whose implementation was not in line with the decision of the Constitutional Court. Based on the decision of the Constitutional Court No.27/PUU-XI/2013 explains that the House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only approve or disapprove candidates for Supreme Court Justices that have been submitted by the Judicial Commission. In addition, the proportion of proposed Supreme Court Justices from the judicial commission to the House of Representatives (DPR) has changed, whereas previously the Judicial Commission had to propose 3 (three) of each vacancy for the Justices, now it is only one of each vacant for Supreme Court Judges. by the Supreme Court. The House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only "approve" or "disagree" the Supreme Judge candidates nominated by the Judicial Commission.

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Equity and certainty in contract law

Acta Juridica ◽

10.47348/acta/2021/a6 ◽

2021 ◽

Vol 2021 ◽

pp. 141-176

Author(s):

F Brand

Keyword(s):

Supreme Court ◽

Contract Law ◽

Constitutional Court ◽

High Court ◽

Contractual Relationships ◽

The Supreme Court ◽

The Subject ◽

Court Of Appeal ◽

Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

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Interview with Mr. Adam Haji Ali Ahmed, President of the Supreme Court, Constitutional Court and the High Judicial Council of Somaliland

Trends in the Judiciary ◽

10.1201/9781315164960-2 ◽

2017 ◽

pp. 3-20

Author(s):

Zahra Jibril

Keyword(s):

Supreme Court ◽

Constitutional Court ◽

The Supreme Court

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

Audito Comparative Law Journal (ACLJ) ◽

10.22219/aclj.v2i2.16207 ◽

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.

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Pergeseran Rezim Sistem Pemilihan Kepala Daerah di Indonesia

Kanun Jurnal Ilmu Hukum ◽

10.24815/kanun.v21i3.12231 ◽

2020 ◽

Vol 21 (3) ◽

pp. 361-376

Author(s):

Ahmad Mirza Safwandy ◽

Husni Jalil ◽

Moh Nur Rasyid

Keyword(s):

Supreme Court ◽

Dispute Resolution ◽

Constitutional Court ◽

Regional Government ◽

Resolution System ◽

The Supreme Court ◽

Election System ◽

Electoral Regime ◽

Election Fraud ◽

Dispute Resolution System

Penelitian ini bertujuan menguraikan pergeseran sistem pemilihan kepala daerah dari rezim pemilihan umum ke rezim Pemerintahan Daerah. Pergeseran ini berdampak kepada peralihan kewenangan penyelesaian sengketa dari Mahkamah Konstitusi ke Mahkamah Agung sebagai konsekuensi Putusan MK Nomor 97/PUU–XI/2013. Putusan MK berimpilikasi kepada sistem pemilihan kepala daerah (Pilkada) yang berada di rezim pemilihan umum beralih ke rezim pemerintahan daerah, setelah putusan tersebut undang-undang mengamanatkan pembentukan peradilan khusus Pilkada yang berada di bawah kekuasaan Mahkamah Agung. Penelitian ini menggunakan pendekatan yuridis normatif dengan bertumpu pada studi dokumen berupa bahan hukum. Penelitian menyimpulkan bahwa meski tidak lagi menjadi kewenangan MK untuk mengadili perkara Pilkada, MK masih mengadili sengketa Pilkada hingga peradilan khusus Pilkada terbentuk. Peradilan khusus Pilkada selain mengadili sengketa hasil dapat mengadili sengketa proses, terkait sengketa administrasi Pilkada, sengketa Pidana Pilkada termasuk mengadili perihal election fraud dan corrupt campaign practice. Sistem penyelesaian sengketa Pilkada dilakukan melalui satu atap, sehingga tidak terjadi tumpang tindih putusan seperti yang terjadi selama ini. Shifting of Regime on Regional Election System in Indonesia This study aims to describe the shift of the regional election system from the general election regime to the regional district regime. The shift has an impact on the tranfer of authority to resolve disputes from Constitutional Court to Supreme Court as a consequence of the Constitutional Court Decision Number 97/PUU-XI/2013. The decision implied to the regional election system (Pilkada) which was in the electoral regime moved to the regional government regime, after the ruling mandated the establishment of a special election court under the authority of the Supreme Court. This research uses a normative juridical approach by analyzing law documents. The research concluded that although adjudicating of regional election disputes was no longer under the jurisdiction of the Constitutional Court, but the Court still adjudicate election disputes until a special court was formed. In addition to adjudicating disputes over results, the Election Special Court can also adjudicate election disputes related to process, administrative, criminal disputes including hearing about election fraud and corrupt campaign practice. Pilkada dispute resolution system is done through one roof, so there is no overlapping of decisions as has happened so far.

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