scholarly journals Legitimacy of the Dissolution of Beliefs by Community Organizations

2022 ◽  
Vol 3 (1) ◽  
pp. 35-45
Author(s):  
I Nyoman Budiana
Keyword(s):  
Community Organizations ◽  
The State ◽  
Constitutional Court ◽  
Belief In God ◽  
National Legal System ◽  
System 2 ◽  
Legal Position ◽  
Constitutional Right ◽  
The One ◽  
The Right

Article 28E paragraph (1) of the 1945 Constitution states "Every person shall be free to choose and to practice the religion of his/her choice, to choose one’s education, to choose one’s employment, to choose one’s citizenship, and to choose one’s place of residence within the state territory, to leave it and to subsequently return to it.” In paragraph (2), everyone has the right to the freedom to believe in his/her beliefs, to express his/her views and thoughts, according to his/her conscience. The constitutional guarantees for believers can also be seen in Article 29 of the 1945 Constitution stating that the state shall be based upon the One and Only God and the State guarantees all persons the freedom of worship, each according to his/her own religion or belief. The Constitutional Court affirms that the right to adhere to a religion or belief in God Almighty is a citizen's constitutional right, not a gift from the state. Therefore, the state is obliged to protect and guarantee the fulfillment of the rights of it’s the citizens to embrace a belief other than the six religions developed in Indonesia. However, in practice the dissolution of beliefs is actually carried out by community organizations. In this study, two things will be discussed namely: 1) What is the legal position of adherents of belief in the national legal system? 2) Do community organizations have the authority to dissolve religious beliefs? This research is normative juridical research, in which the problems in this research are analyzed qualitatively.

scholarly journals Issues of implementation of equality of arms principle in case of declaring the applied law unconstitutional

2021 ◽  
pp. 44-55
Author(s):  
Iryna Berestova ◽  
Oksana Khotynska-Nor
Keyword(s):  
National Level ◽  
Constitutional Court ◽  
Scientific Methods ◽  
Constitutional Principle ◽  
Litigation Process ◽  
Legal Position ◽  
The Law ◽  
Constitutional Right ◽  
The Right ◽  
Judicial Protection

The Article considers the issue of ensuring the constitutional principle of equality of litigants before the law and the court during review of the judgement in view of the exceptional circumstances after consideration of the case by the Constitutional Court. Based on the study of legal nature of such consequences of nullity of the law as pro futuro, ex nunc, ex tunc, the risks of violation of the constitutional right of a person to judicial protection shall be established. The aim of the Article is to detect the objective demonstration of the constitutional principle of equality of litigants before the law and the court. The methods of the study: system, dialectical, integrative, interdisciplinary and scientific methods applied to detect the interrelation between the constitutional principle of equality of arms and its practical demonstration in litigation process. The main results of the study. Two components affecting the efficiency of protection of such right have been established: future effect of the judgement of the Constitutional Court of Ukraine and impossibility to consider the application in view of exceptional circumstances if before appeal to the Constitutional Court of Ukraine a person’s claim was dismissed in full under the applicable laws and was further declared unconstitutional by the Constitutional Court. The erroneous legal position of the supreme court in the system of the judiciary of Ukraine was proved in terms of the impossibility of initiating proceeding in exceptional circumstances after delivery of the judgement of the Constitutional Court of Ukraine due to the fact that the person’s claim had previously been dismissed and such a judgement does not provide for its enforcement. This conclusion deprives a person of the right to a final trial at the national level in accordance with the procedure of applying to the court (Articles 8, 24, 55, paragraph 1 Part 2 of Article 129 of the Constitution of Ukraine). It is proposed to develop a special law establishing the grounds and procedure for compensation by the state of moral and financial damages caused by the law recognized as the unconstitutional one.

scholarly journals Manipulation of the Right to Defense from the Standpoint of Securing the Right of the Accused to Free Selection of an Attorney

2021 ◽  
Vol 1 ◽  
pp. 33-39
Author(s):  
Irina V. Revina ◽  
◽  
Olesya S. Pashutina ◽  
Irina N. Chebotareva ◽  
◽  
...  
Keyword(s):  
Russian Federation ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
European Court ◽  
The Supreme Court ◽  
Legal Position ◽  
The Russian Federation ◽  
Constitutional Right ◽  
Individual Decisions ◽  
The Right

Based on the analysis of the legal position of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, individual decisions of the European Court of Human Rights, the article examines the factors that determine the participation of backup advocates in criminal proceedings. The article analyzes the criteria for the validity of the refusal of the accused/defendant from the defense-backup in the criminal proceedings. Attention is focused on the inadmissibility of duplication of the functions of the defense that violates the constitutional right of the suspect, the accused to freely choose a lawyer. Methods for resolving the designated legal conflict are proposed.

scholarly journals KEDUDUKAN DAN HAK ANAK LUAR NIKAH PASCA PUTUSAN MAHKAMAH KONSTITUSI NOMOR 46/PUU-VIII/2010 TENTANG STATUS ANAK LUAR NIKAH

2019 ◽  
Vol 5 (2) ◽  
pp. 119
Author(s):  
Nurul Hak
Keyword(s):  
Constitutional Court ◽  
Biological Father ◽  
Biological Parents ◽  
The Status ◽  
Pros And Cons ◽  
Legal Position ◽  
The One ◽  
The Right ◽  
Relationship Of ◽  
The Guardian

This article describes that since the ruling of the Constitutional Court No. 46/ PUU-VIII / 2010 concerning the status of children out of wedlock, there are pros and cons in the community in responding to the decision. Because this decision is on the one hand different from the provisions in Law No. 1 of 1974 and contrary to the fatwa of the Indonesian Ulama Council No. 11 of 2010 concerning the position of adultery children and treatment of them, on the other hand in their implementation requires implementation regulations which up to now do not yet exist. In the decision of the Constitutional Court it became clear the legal position of zina children or children born without going through the door of marriage, as illegitimate children, he only had a civil relationship with his mother and his mother's family. For men who cause their birth to be subject to ta'zir punishment, by providing a living and living necessity, the punishment is solely to provide protection for the child, so that the child gets the proper life insurance. The civil relationship of the child of adultery results does not cause a nasab relationship, but requires the biological parents to provide a guarantee of life for their child. If an adultery child is a woman, if she wants to get married, then the right to become a guardian is the guardian of the judge, while her parents, in this case her biological father is obliged to hold the marriage ceremony.

Filippov solutions of vector Dirichlet problems

2020 ◽  
Vol 70 (2) ◽  
pp. 401-416
Author(s):  
Hana Machů
Keyword(s):  
Differential Equations ◽  
The State ◽  
State Variables ◽  
Dirichlet Problems ◽  
Filippov Solutions ◽  
Natural Notion ◽  
Growth Restrictions ◽  
The One ◽  
The Right ◽  
Effective Growth

Abstract If in the right-hand sides of given differential equations occur discontinuities in the state variables, then the natural notion of a solution is the one in the sense of Filippov. In our paper, we will consider this type of solutions for vector Dirichlet problems. The obtained theorems deal with the existence and localization of Filippov solutions, under effective growth restrictions. Two illustrative examples are supplied.

The State Policy towards the Homeless in Moldova between the ‘Left Hand’ and the ‘Right Hand’. The Case of Chișinău Shelter

Südosteuropa ◽  
2019 ◽  
Vol 67 (2) ◽  
pp. 175-195
Author(s):  
Petru Negură
Keyword(s):  
Homeless People ◽  
Severe Disabilities ◽  
The State ◽  
Small Scale ◽  
Left Hand ◽  
Right Hand ◽  
Binary Approach ◽  
The One ◽  
The Right ◽  
Depth Interviews

Abstract The Centre for the Homeless in Chișinău embodies on a small scale the recent evolution of state policies towards the homeless in Moldova (a post-Soviet state). This institution applies the binary approach of the state, namely the ‘left hand’ and the ‘right hand’, towards marginalised people. On the one hand, the institution provides accommodation, food, and primary social, legal assistance and medical care. On the other hand, the Shelter personnel impose a series of disciplinary constraints over the users. The Shelter also operates a differentiation of the users according to two categories: the ‘recoverable’ and those deemed ‘irrecoverable’ (persons with severe disabilities, people with addictions). The personnel representing the ‘left hand’ (or ‘soft-line’) regularly negotiate with the employees representing the ‘right hand’ (‘hard-line’) of the institution to promote a milder and a more humanistic approach towards the users. This article relies on multi-method research including descriptive statistical analysis with biographical records of 810 subjects, a thematic analysis of in-depth interviews with homeless people (N = 65), people at risk of homelessness (N = 5), professionals (N = 20) and one ethnography of the Shelter.

scholarly journals After Mazibuko: Exploring the responses of communities excluded from South Africa's water experiment

2017 ◽  
Vol 61 (1) ◽  
pp. 57-81 ◽  
Author(s):  
Nathan John Cooper
Keyword(s):  
South Africa ◽  
Resource Allocation ◽  
Social Engagement ◽  
Water Allocation ◽  
Constitutional Court ◽  
Water Access ◽  
Cultural Phenomenon ◽  
Legal Provisions ◽  
Constitutional Right ◽  
The Right

AbstractDespite a constitutional right to water, challenges remain for access to sufficient water in South Africa. This article considers the degree to which current legal provisions perpetuate approaches that are antithetical to genuinely eco-socio-sustainable water access. Water in South Africa has largely been re-cast as a commodity, exposed to market rules, proving problematic for many and giving rise to various responses, including litigation. In the seminal case of Mazibuko, the Constitutional Court failed to provide robust protection to the right to water, providing impetus for the formation of “commons” strategies for water allocation. Indeed, “commoning” is beginning to represent not only an emerging conceptual strand in urban resource allocation, but also a dynamic, contemporary, eco-sensitive, socio-cultural phenomenon, driving innovative, interactive and inclusive forms of planning and social engagement. Against the backdrop of unequal water access, commoning offers glimpses of an empowering and enfranchising subaltern paradigm.

Amendment of the Contravention Code or Defiance of the Constitution by the Exceptional Situations Commission?

2021 ◽  
pp. 56-65
Author(s):  
Iulian Rusanovschi ◽  
Keyword(s):  
Public Health ◽  
The State ◽  
Constitutional Court ◽  
State Of Emergency ◽  
Constitutional Review ◽  
Republic Of Moldova ◽  
The Republic ◽  
The Right ◽  
Epidemiological Situation

On 17.03.2020, the Parliament declared a state of emergency on the entire territory of the Republic of Moldova for the period March 17 - May 15, 2020. By the same Decision, the Parliament delegated the Commission for Exceptional Situations with the right to implement a series of measures to overcome the epidemiological situation in the country. However, in the conditions of a functioning Parliament and despite the clear and exhaustive texts of the Constitution, the Commission for Exceptional Situations amended during the state of emergency the Contravention Code, which is an organic law. The amendments specifically concerned the procedure and terms for examining infringement cases brought in connection with non-compliance with the measures adopted by the Commission for Exceptional Situations and the Extraordinary Commission for Public Health. In the conditions in which an organic law can be modified only by the Parliament, it is obvious the unconstitutionality, at least partial, of the Disposition no. 4 of 24.03.2020 of the Commission for Exceptional Situations, but unfortunately, the Constitutional Court is not mandated with the right to submit to constitutional review the normative acts adopted by the Commission for Exceptional Situations. Under these conditions, the state is obliged to identify solutions in order not to allow an authority to adopt unconstitutional normative acts that cannot be subject to constitutional review.

scholarly journals Kebebasan Hak Ijtihad Nikah Beda Agama Pasca Putusan Mahkamah Konstitusi

2016 ◽  
Vol 12 (3) ◽  
pp. 604
Author(s):  
Faiq Tobroni
Keyword(s):  
The State ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Interfaith Marriage ◽  
The Third ◽  
Interfaith Marriages ◽  
Key Issues ◽  
Marriage Laws ◽  
Constitutional Right ◽  
The Impact

This paper has three key issues. The first issue discusses the arguments constructed by applicant of judicial review (JR) to assess the constitutional rights’ violations caused by the application of Article 2 (1) UUP. The second issue discusses on how the Constitutional Court (MK) seated position of state associated marital affairs in the rejection of JR. The third issue discusses model of freedom of ijtihad (legal thought) on interfaith marriage as the impact of MK’s Decision. Based on    the discussion, regarding to the first issue, the applicant of JR assess the application of Article 2 (1) UUP has legitimized the state as the sole interpreters of religious teachings for a requirement validity of the marriage. According to the applicant,  the role is used by the state (The Office for Religious Affairs/KUA) to not accept interfaith marriage. This refusal led to the violation of some other constitutional rights. Furthermore, as the findings of the second issue, MK’s decision has placed   the real position of state not as interpreters of religious teachings, but merely to accommodate the results of religious scholars’s ijtihad regarding marriage into the state law. Thus, it is not true that the state has violated the constitutional right to more intervene the religious life of citizens. Last findings as the third issue, MK’s decision has affected the model of ijtihad freedom on interfaith marriage. Actually interfaith marriage can still be served through the Civil Registry Office (KCS). KCS could be an alternative way to facilitate the interfaith marriages for all religions in Indonesia. Special for KUA, the institution reject to record interfaith marriage.   In this way, it only accommodates freedom of ijtihad within the limits of ijtihad jama’i. KUA just accomodates ijtihad by institutions such as the Majelis Ulama Indonesia, Nahdlatul Ulama, Muhammadiyah and other similar institutions that reject interfaith marriage. Special for marriage in muslim community, ijtihad jama’i is better than ijtihad fardiy because the second could trigger the liberalization of marriage laws (temporary marriages, polygamy more than four, underage marriages and denial of recording).

scholarly journals IS CYBER SEARCH AND SEIZURE UNDER THE CYBERCRIMES AND CYBERSECURITY BILL CONSISTENT WITH THE PROTECTION OF PERSONAL INFORMATION ACT?

Obiter ◽  
2016 ◽  
Vol 37 (3) ◽  
Author(s):  
Melody Musoni
Keyword(s):  
Personal Information ◽  
The State ◽  
Search And Seizure ◽  
Right To Privacy ◽  
The Right To Privacy ◽  
Constitutional Right ◽  
The Right

The focus of this note is to analyze whether the Cybercrimes and Cybersecurity Bill provides a harmonization between search and seizure and the constitutional right to privacy. This will be achieved by discussing the State powers of search and seizure in cyberspace vis-à-vis the right to privacy as envisaged in the Protection of Personal Information Act. Further, this note investigates whether the Cybercrimes and Cybersecurity Bill achieves the purpose of combatting cybercrimes without the infringement of the right to privacy. Subsequently, the article provides plausible recommendations on how the State should lawfully conduct searches and seizures of articles related to cybercrimes.

scholarly journals CONSEQUENCES OF THE DECISION OF THE CONSTITUTIONAL COURT OF ROMANIA NO. 2/2017 ON THE EXTRAORDINARY APPEAL PATH OF THE REVIEW

2018 ◽  
Vol 11 (2) ◽  
pp. 68-75
Author(s):  
Mihaela Pătrăuș ◽  
Darius-Dennis Pătrăuș
Keyword(s):  
Central Element ◽  
The State ◽  
Judicial System ◽  
Criminal Case ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Initial Report ◽  
State Of Affairs ◽  
The One ◽  
Judicial Error

The central element of this extraordinary appeal is the judicial error. The review involves finding a legal error in the criminal case settled by a final judgment, which was based on an erroneous assessment of the state of affairs. Exercising appeals does not create a new procedural report, but only extends the initial report in this new procedural phase. In our judicial system, the unanimous classification is that appeals are divided into two categories: ordinary ways and extraordinary ways. Thus, before the decision, the case under Article 453 (1) (a) could be invoked as a ground for review only in favor of the convicted person or of the one to whom the waiver of the punishment or deferment of the punishment or termination of the criminal proceedings, if the review is aimed at obtaining an acquittal. Therefore, this case of revision could not be used to the detriment of the person who was acquitted or who was ordered to terminate the criminal proceedings, with the aim of reaching a decision on conviction, renunciation of the punishment or postponement of the application punishment.

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