A Study on the Constitutional Review on the Seditious Book Ban in the Military - Focusing on the Decision of the Constitutional Court, 2008Hun-Ma638 and the Decision of the Supreme Court, 2012Du26401 -

2018 ◽  
Vol 5 (1) ◽  
pp. 221-265
Author(s):  
이재희
Keyword(s):  
Supreme Court ◽  
Constitutional Court ◽  
Constitutional Review ◽  
The Supreme Court ◽  
The Military

scholarly journals Filling the Hole in Indonesia’s Constitutional System: Constitutional Courts and the Review of Regulations in a Split Jurisdiction

2018 ◽  
Vol 4 (1) ◽  
pp. 27
Author(s):  
Tim Lindsey
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Civil Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
The Real ◽  
The Supreme Court ◽  
Constitutional System ◽  
Do So

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.

scholarly journals CELAH INTERVENSI KEKUASAAN EKSEKUTIF TERHADAP KEKUASAAN YUDIKATIF DI LINGKUNGAN PERADILAN MILITER

2018 ◽  
Vol 3 (2) ◽  
pp. 205-216
Author(s):  
Aditya Wiguna Sanjaya
Keyword(s):  
Supreme Court ◽  
Judicial Power ◽  
Executive Power ◽  
Constitutional Court ◽  
Reform Era ◽  
The Supreme Court ◽  
The Military

Judicial power is one of the pillars supporting the establishment of a state, which ideally upholds the principle of independence so that it is independent and free from any influence of power, in the context of Indonesia the judicial power is carried out by a Supreme Court consisting of four judicial circles, namely general justice, religious court, the administrative court, military court and a Constitutional Court, in the course of the dynamics in the implementation of Judicial Power in Indonesia, which initially involved the organization, administration, and finance of the judicial body in relation to subordinate executive power, after the reform era had shifted under the Supreme Court, however, specifically for the military court there are still gaps in the potential for intervention from the executive power, which are caused by judges in the military court hierarchically there is still a command relationship with the TNI Commander and the President as the highest authority over the TNI. This will certainly have an influence on the independence of the military court as one of the executive branches of judicial power.

scholarly journals LEGAL PROBLEMS OF DUALISM OF JUDICIAL REVIEW SYSTEM IN INDONESIA

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

scholarly journals KEKUATAN MENGIKAT PUTUSAN CONSTITUTIONAL REVIEW MAHKAMAH KONSTITUSI TERHADAP MAHKAMAH AGUNG

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

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

2013 ◽  
Vol 9 (2) ◽  
pp. 335-354 ◽  
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.’

DEKADENSI PEMILIHAN HAKIM AGUNG OLEH DPR RI

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.

Equity and certainty in contract law

Acta Juridica ◽  
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.

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.

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