scholarly journals POLITIK HUKUM MAHKAMAH KONSTITUSI DALAM JUDICIAL REVIEW (SEBUAH PENDEKATAN SOSIOLOGIS)

2020 ◽  
Vol 3 (1) ◽  
pp. 86-99
Author(s):  
Murdoko Murdoko
Keyword(s):  
Legal System ◽  
Political System ◽  
The Political ◽  
New Order ◽  
Constitutional Court ◽  
Strategic Model ◽  
Legal Model ◽  
Institutional Model ◽  
Almost All ◽  
Politics And Law

AbstractThe collapse of the New Order and the subsequent rise of the Reformation changed the political system, the legal system and the economic system. The political system and legal system almost all agree to change to become more liberal by promoting human rights, but for the economy there is division, which is to change to become liberal as in politics and law, and remain "integralistic" or family that leads to socialism. As a result, the Constitutional Court whose duty is to maintain the interpretation of the constitution by law allows for several models of decisions, namely the legal, attitude, strategic and institutional models.Keywords: Reformation, family, Liberal, legal model, attitude model, strategic model, and institutional model. AbstrakRuntuhnya Orde Baru dan diikuti munculnya Reformasi telah merubah sistem politik, sistem hukum, dan sistem ekonomi. Sistem politik dan sistem hukum hampir seluruhnya menyetujui berubah menjadi lebih liberal dengan mengedepankan HAM, tetapi untuk ekonomi terjadi pembelahan, yaitu ikut berubah menjadi liberal sebagaimana dalam politik dan hukum, serta tetap “integralistik” atau kekeluargaan yang mengarah pada sosialisme. Akibatnya terhadap Mahkamah Konstitusi yang bertugas untuk menjaga interpretasi terhadap konstitusi oleh undang-undang memungkinkan terjadinya beberapa model putusan, yaitu model legal, sikap, strategis, dan institusional.

scholarly journals Defining Judicial Independence and Accountability Post Political Transition

2019 ◽  
Vol 5 (2) ◽  
pp. 294
Author(s):  
Ibnu Sina Chandranegara
Keyword(s):  
Supreme Court ◽  
Political System ◽  
Judicial Independence ◽  
Political Transition ◽  
The Political ◽  
New Order ◽  
Constitutional Court ◽  
Judicial Corruption ◽  
The Supreme Court ◽  
Political Configuration

Indonesian constitutional reform after the fall of Soeharto’s New Order brings favorable direction for the judiciary. Constitutional guarantee of judicial independence as regulated in Art 24 (1) of the 1945 Constitution, has closed dark memories in the past. This article decides that the Judiciary is held by the Supreme Court and the judicial bodies below and a Constitutional Court. Such a strict direction of regulation plus the transformation of the political system in a democratic direction should bring about the implementation of the independent and autonomous judiciary. But in reality, even though in a democratic political system and constitutional arrangement affirms the guarantee of independence, but it doesn’t represent the actual situation. There are some problems that remain, such as (i) the absence of a permanent format regarding the institutional relationship between the Supreme Court, the Constitutional Court, and the Judicial Commission, and (ii) still many efforts to weaken judiciary through different ways such criminalization of judge. Referring to the problem above, then there are gaps between what "is" and what "ought", among others. First, by changing political configuration that tends to be more democratic, the judiciary should be more autonomous. In this context, various problems arise such as (i) disharmony in regulating the pattern of relations between judicial power actors, (ii) various attempts to criminalize judges over their decisions, and (iii) judicial corruption. Second, by the constitutional guarantee of the independence of the judiciary, there will be no legislation that that may reduce constitutional guarantee. However, there are many legislation or regulations that still not in line with a constitutional guarantee concerning judicial independence. This paper reviews and describes in-depth about how to implement constitutional guarantees of judicial independence after the political transition and conceptualize its order to strengthen rule of law in Indonesia

What Changes for the Constitutional Court with the New Russian Constitution?

2021 ◽  
Vol 6 (1) ◽  
pp. 27-49
Author(s):  
Ivan S. Grigoriev
Keyword(s):  
Political System ◽  
Institutional Development ◽  
Status Quo ◽  
The Political ◽  
Constitutional Court ◽  
Locus Standi ◽  
The Status ◽  
Russian Constitution ◽  
International Obligations

Abstract Of the 206 amendments introduced to the Russian constitution and adopted on July 1, 2020, 24 deal directly with the Constitutional Court, its organization, functioning, and the role it plays in the political system. Compared to many other, these are also rather precise and detailed, ranging from the number of judges on the bench, their nomination and dismissal, to the Court’s inner procedures, new locus standi limitations, and the primacy of the Constitution over Russia’s international obligations. Most changes only reproduce amendments brought to the secondary legislation over the last twenty years, and are therefore meant to preserve the status quo rather than change anything significantly. At the same time, a number of amendments aim at politicizing and instrumentalizing the Court for the president’s benefit, marking a significant departure from the previous institutional development.

From Parliament to Courtroom

2015 ◽  
Vol 30 (1) ◽  
pp. 120-146 ◽  
Author(s):  
Lubomír Kopeček ◽  
Jan Petrov
Keyword(s):  
Transitional Justice ◽  
Judicial Review ◽  
Political System ◽  
Point Of View ◽  
The Political ◽  
Legislative Process ◽  
Constitutional Court ◽  
Lower House ◽  
Strong Position ◽  
The Government

The Czech Constitutional Court has gained a strong position within the political system. This article examines the judicial review of legislation from the point of view of the relation between the court and the parliament. The authors analyze trends in the use of petitions proposing the annulment of statutes, who makes use of the petitions, how successful the petitioners are, and what issues the petitions concern. The article pairs a quantitative view with a qualitative analysis of key selected decisions by the court, especially in the sphere of mega-politics. The authors test whether judicial review of legislation serves as a tool for parliamentary opposition. The results show the decisive effects of a legislative majority in the lower house of the parliament. If the government lacks a majority, the use of judicial review of legislation as an oppositional tool fades. Also important is the weakness of the upper house, which makes senators more likely to resort to using judicial review of legislation. An especially crucial factor is the presence of independent and semi-independent senators who, without broader political backing, see judicial review of legislation as a welcome tool. The most frequent topics of the petitions were transitional justice, social policy, and the legislative process.

Civil disobedience and constituent power

2015 ◽  
Vol 11 (4) ◽  
pp. 462-480
Author(s):  
Richard Nobles ◽  
David Schiff
Keyword(s):  
Legal System ◽  
Political System ◽  
Civil Disobedience ◽  
The Political ◽  
Constituent Power ◽  
Structural Coupling ◽  
Current Configuration ◽  
Law And Politics ◽  
Discretionary Powers ◽  
Legal Right

AbstractThis paper uses the example of civil disobedience to explore Luhmann's description of the constitution as structural coupling between law and politics. Civil disobedience highlights the paradox of constituent and constituted power. The claims made for constituent power provide a basis for challenging the current configuration and expression of constituted power. This paradox is first avoided in the legal system through that system's inability to recognise a legal right to disobey law. In turn, a political system that has, under conditions of modernity, increasingly second coded power as legality, has an ever decreasing capacity to include communications that acknowledge a right to disobey law. Civil disobedience is only able to operate within the political system in the form of protest, and is accommodated through the exercise of discretionary powers. However, juridification of those powers has the capacity to threaten this accommodation.

scholarly journals Koncepcja polityczności Chantal Mouffe a poststrukturalizm w filozofii interpretacji prawniczej

2021 ◽  
Vol 43 (2) ◽  
pp. 273-279
Author(s):  
Jakub Łakomy
Keyword(s):  
Political Philosophy ◽  
Political Theory ◽  
Legal System ◽  
Political System ◽  
The Political ◽  
Legal Interpretation ◽  
The Third ◽  
Stanley Fish ◽  
Agonistic Democracy ◽  
Definition Of

The present article deals with the political nature of the interpretation theory, using poststructuralism as a source of reflection. The analysis is conducted by using poststructuralist epistemology and poststructuralist political theory. The thesis of this article, which is metatheoretical in nature, is that the poststructuralist concepts of legal interpretation can be used only after simultaneously adopting the assumptions of the political philosophy which originated in poststructuralism. Chantal Mouffe’s concept of the political is very much tied to considerations about agonistic democracy and agonistic pluralism, which gives us original answers to the questions of how society, the political system, and the legal system can help us prevent the emergence and flourishing of authoritarianism. The first part of the text presents the poststructuralist definition of the political and politics as well as shows its importance for the analysis of the contemporary legal interpretation concepts. In the next part, the author discusses the topic of poststructuralism in jurisprudence and its most important features for a change in the discourse of philosophy of interpretation. The third part of the article examines poststructuralist anti-essentialism using the example of one from among the most famous neopragmatist and poststructuralist philosophers — Stanley Fish. In the fourth and last part of the considerations, the thesis about the necessity of joint use of poststructuralist epistemology and political theory for research on legal interpretation is verified and metatheoretical conclusions are drawn from it.

scholarly journals WINCENTY SKRZETUSKI O POTRZEBIE ORAZ ZMIANACH W PRAWIE I USTROJU DOBY STANISŁAWOWSKIEJ

2016 ◽  
Vol 11 (4) ◽  
pp. 385
Author(s):  
Wojciech Organiściak
Keyword(s):  
Legal System ◽  
Political System ◽  
The Political ◽  
First Republic ◽  
Weak Points ◽  
Liberum Veto ◽  
The Times

WINCENTY SKRZETUSKI ABOUT NECESSITY ALSO FOR A CHANGE OF LEGAL SYSTEM AND POLITICAL SYSTEM OF THE TIMES STANISŁAW AUGUST REIGN (1764-1795)Summary Wincenty Skrzetuski, in his work The Political Law of the Polish Nation, when discussing the issue of the functioning of the political system of he gentry Republic, presented a liberum veto, a short draft which he considered one of the most disastrous mechanisms of the abuse of citizen-ship freedom for Poland. Polish piarist made interesting historical digressions which showed some of the weak points of the solutions functioning in the parliamentary practice of the First Republic of Poland. Wincenty Skrzetuski, discussing a procedure of parliamentary sessions, ammended in the period of Stanisław August, did not always clearly emphasise the solutions aiming at simplification and acceleration of the course of the parliamentary sessions. It needs to be emphasized that describing the problem of parliamentary clearances, he referred to disastrous parliamentary practices and was in line with some drafters of the reforms in the gentry Republic of Poland who demanded radical changes in the clearance procedure or even its total abolishment. The opinions and viewpoints presented by Skrzetuski allow for ascribing him to the group of the continuators of the work by Stanisław Konarski. Wincenty Skrzetuski’s attitudes to law and critical of the legal system of his times, he postulated abolition of severe penalties in favour of creating conditions ascertaining that a punishment is truly carried out. This Piarist scholar followed the Renaissance views that laws should be written in a concise, clear and comprehensive language, and be free from any contradictions. Skrzetuski in your “Speeches on the main political matters” postulated an urgent and unconditional abolition of torture. Many of his arguments related almost directly to Cesare Beccaria’s “On crimes and punishments” or derived from the thoughts of eminent thinkers like Montesquieu and Rousseau.

scholarly journals Kebijakan Pendidikan Sebagai Kebijakan Publik dalam Sistem Politik di Indonesia

2017 ◽  
Vol 2 (1) ◽  
pp. 78-91
Author(s):  
Maskuri Maskuri
Keyword(s):  
Education Policy ◽  
Education System ◽  
Political System ◽  
The Political ◽  
Constitutional Court ◽  
Governance System ◽  
Reform Era ◽  
The Public ◽  
History Of ◽  
Political Configuration

In the history of Indonesian, education policy has always been dynamic. Before independence until the reform era of education policy can not be separated from the political system. We know that education policy as part of education policy is a political product. Political configuration in every era of state political leadership has always changed according to the political wind and the configuration of political rulers. However, forces outside the governance system, such as educational community groups, will give color to the education system. When the political system demands the centralization of power, the education system will also concentrate on a centralized government. With the flow of reforms, it has spawned many changes in the education system. Several articles, even the law which, according to the public, lack attention to the aspect of education itself, are sued to the Constitutional Court. Along with the policy of regional autonomy, education policy must be able to adjust to the development of society in autonomous regions. This necessarily requires the creativity of leaders in the region in terms of promoting education in the region in accordance with the aspirations of the community.

Das politische System der Türkei unter dem Einfluss der AKP

2021 ◽  
Author(s):  
Hans Hermann Linscheid
Keyword(s):  
Political Culture ◽  
Legal System ◽  
Political System ◽  
Social Groups ◽  
The Political ◽  
Social Conflicts ◽  
System Transformation ◽  
Strong Polarization ◽  
The Republic ◽  
Republic Of Turkey

Turkey has changed significantly since the AKP came to power in 2002. These changes affect the political system, political culture, the legal system, but also people's everyday lives. With this system transformation, a strong polarization of society can be observed. The question arises whether a more consensus-oriented, pluralistic system or a more authoritarian “majority democracy” has been created in the Republic of Turkey. When examining these questions, the author deals in particular with the parties, social groups, political culture and the causes, backgrounds and possible solutions to political and social conflicts.

The fall of the Constitution’s political insurance: How the Morales regime eliminated the insurance of the 2009 Bolivian Constitution

2019 ◽  
Vol 17 (4) ◽  
pp. 1098-1124
Author(s):  
Sergio Verdugo
Keyword(s):  
Political System ◽  
Institutional Arrangements ◽  
The Political ◽  
Constitutional Court ◽  
Political Rights ◽  
Constitutional Courts ◽  
Incumbent Regime ◽  
Legal Strategies ◽  
Constitutional System ◽  
Political Insurance

Abstract Some scholars argue that constitutions may include an insurance that aims to protect the political rights of prospective electoral losers and prevents a dominant ruling coalition from undermining the competitiveness of the political system. Although some insurance scholars have recently paid more attention to the conditions that make an insurance more likely to be effective, the scholarship seeking to identify the limits of the insurance is still scarce. The literature on courts and democratization may help us to understand those limits by exploring successful and failed experiences. In this article, I argue that after constitution-makers agree to including an insurance, the incumbent regime may delay its implementation or, if the insurance is implemented, the regime may employ different political and legal strategies to eliminate it. I identify some of these strategies using examples from the Bolivian constitutional system. I argue that the Bolivian 2009 Constitution included an insurance and that the Evo Morales regime eliminated it with the help of the Constitutional Court. Although insurance theory expects constitutional courts to guarantee key institutional arrangements, the Bolivian experience shows that constitutional courts may in fact execute the opposite task, and that after constitution makers negotiate and approve an insurance, the challenge is to secure its implementation and survival.

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