PERANAN MAHKAMAH AGUNG DALAM PENEGAKAN HUKUM DAN KEADILAN MELALUI KEKUASAAN KEHAKIMAN

Judicial power is an independent power to conduct justice and to uphold law and justice. One of the executors of the judicial power was carried out by the Supreme Court. The role of the Supreme Court as the executor of judicial power is urgently needed as a suppressor of any violation of the law, the last place is seeking truth and justice, and the guardian of citizen freedom from all forms of violations of Human Rights. This Research has a formulation of the problem what is the role of the Supreme Court in upholding law and justice and what are the driving factors and obstacles to the Supreme Court in carrying out its role throught the judicial authority. The purpose of this study is to know and understand the extent to which the independence and independence of the Supreme Court at this time, to understand the role of the Supreme Court in upholding law and justice, and to know the driving factors and obstacles of the Supreme Court in carrying out its role through judicial power. Based on the analysis carried out, it was concluded that the Supreme Court in carrying out its duties and functions has 2 (two) roles, that is as the the Supreme Court Judiciary that carries out the judicial function of making regulations to fill the vacancy in order to smooth the judicial process as a State High Institutions that carries out non-judicial functions, which includes providing legal considerations/advice to other State High Institutions.

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Uloga institucije ombudsmena i sudova u sudskim postupcima povodom slučajeva diskriminacije u Bosni i Hercegovini

Zbornik radova Pravnog fakulteta u Splitu ◽

10.31141/zrpfs.2019.56.133.667 ◽

2019 ◽

Vol 56 (3) ◽

pp. 667-683

Author(s):

Mirza Čaušević

Keyword(s):

Human Rights ◽

Supreme Court ◽

Bosnia And Herzegovina ◽

General Information ◽

Direct Discrimination ◽

The Supreme Court ◽

The Law ◽

Court Proceedings ◽

The Individual

When reading the article’s title, it is important to emphasize the role and importance of the Institution of the Ombudsman for Human Rights of Bosnia and Herzegovina, the most important national institution for the protection of human rights and fundamental freedoms. Consequently, according to the logic of thinking, it can be clearly concluded that the most important segment of action, above mentioned national institution, is to prevent or eliminate all forms of indirect and direct discrimination. Accordingly, the author decided, in addition to introductory and concluding considerations, to divide the article into four (4) parts. The first part of the article entitled “Theoretical Determination of Discrimination” provides general information on the concept, different forms and types of discrimination in accordance with the Law on Prohibition of Discrimination in Bosnia and Herzegovina. Unlike the first, in the second part of the article “The Role of the Ombudsman in the Probation of Discrimination Proceedings”, the Ombudsman aims to present the legal position of the ombudsman in court proceedings, with the mandatory indication of the conditions for initiating the proceedings on his own behalf, representing the individual and intervening in the ongoing proceedings. Through practical examples, the author seeks to emphasize the importance, role and importance of the ombudsman in court proceedings. Subsequently, in the third part of the “Role of Courts in the Probation of Discrimination Proceedings”, the author concentrates that, by using the Law on Prohibition of Discrimination, he presents court judgments that discriminate the education system of the Central Bosnia and Herzegovina Canton (non) discriminatory on the basis of the existing segregation in so called. “Two schools under one roof”. Thus, this section primarily analyzes the rejection of the aforementioned claims. Finally, in the fourth (working) section entitled “The Probation of Discrimination Proceeding before the Supreme Court of the Federation of Bosnia and Herzegovina”, the author presents positive and negative examples in the work of the Supreme Court of FBiH, and above all clarifies the process of proving discrimination before this court instance. The aim of this paper is to investigate the legal background of the Institution of the Ombudsman for Human Rights in Bosnia and Herzegovina, as well as judicial instances from the aspect of domestic (national) law, while, on the other hand, special attention is devoted to the actions of the FBiH Supreme Court in cases of discrimination.

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(Just) Give Me A Reason …

Juridica International ◽

10.12697/ji.2018.27.02 ◽

2018 ◽

Vol 27 ◽

pp. 12-35

Author(s):

Julia Laffranque

Keyword(s):

Human Rights ◽

The Netherlands ◽

Supreme Court ◽

European Convention ◽

Eu Law ◽

European Union Law ◽

National Courts ◽

The Supreme Court ◽

Summary Judgment

Judicial systems often wrestle with whether to sacrifice always presenting thorough judicial reasoning for the sake of an effective leave-to-appeal system. The paper outlines issues of reference to the Luxembourg Court, particularly with regard to Estonian circumstances in light of the ECtHR judgment in Baydar v. the Netherlands. The interplay between EU law and the European Convention on Human Rights in this regard is considered first, along with the importance of giving reasons, courts’ authority, the different roles of domestic and European courts, the duty of referring questions to the CJEU and exemption, consequences of non-referral in EU law, the Strasbourg Court’s role in dialogue between national courts and the CJEU, etc. Examined next are such matters as influences on preliminary references in European Union law, summary reasoning and limits to the reasoning duty (especially with regard to the Ullens de Schooten case of the ECtHR), associated division of competencies between the Strasbourg and Luxembourg courts, and finally the reasoning of the ECtHR itself as good or bad example. The author then considers the Supreme Court of Estonia’s leave-to-appeal system and the national courts’ practice in relation to Baydar, concluding that, while reasoned judgments are important and a right, no right exists for the applicant’s case to be referred by a domestic judge to the Luxembourg Court, though it is vital that summary judgment not be arbitrary / manifestly unreasonable; that Estonian courts have made reasonable use of the preliminary reference procedure before the Luxembourg Court thus far; and that they should articulate well the reasoning for referral/non-referral for litigants. The author proposes that the Estonian Supreme Court explain, exceptionally in one refusal of leave to appeal (cf. the Netherlands), that the general requirements for granting leave to appeal cover also the situation of preliminary questions to the CJEU and C.I.L.F.I.T. arguments of the CJEU. Above all, neither the interplay between EU law and the European Convention on Human Rights nor the role of national courts finding their way in complex legal surroundings should be neglected.

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Basic international and European standards in the field of justice and their impact on ensuring the consistency of judicial practice

Law Review of Kyiv University of Law ◽

10.36695/2219-5521.4.2019.11 ◽

1970 ◽

pp. 74-80

Author(s):

Petro Rudyk

Keyword(s):

Human Rights ◽

Supreme Court ◽

International Standards ◽

Council Of Europe ◽

Basic Principles ◽

Legal Standards ◽

Judicial Practice ◽

The Supreme Court ◽

European Standards

Ukraine's integration into the European Union binds the former to approximate its legislation to international and European standards in various fields, including justice. This is also prompted by the EU-Ukraine Association Agreement and by the need for judicial reform, subject to the amendments to the Constitution of Ukraine of June 2016. The purpose of the article is to disclose basic international and European standards in the field of justice and their role in ensuring the consistency of judicial practice, which has not been studied in this aspect before. Scholars have different approaches to defining the concept of "international" and "European" legal standards in the field of justice and their division into types. The author proposes the understanding and definition of these concepts and the division of international standards into two main groups: 1) basic generally recognized international standards, that is binding international legal standards; and 2) special international standards in the field of justice that are advisory. The first group consists of the basic internationally recognized standards enshrined in UN human rights instruments, which are closely related to justice and include, in particular, everyone's entitlement to a fair and public hearing by a competent, independent and impartial tribunal. They are enshrined in the Universal Declaration of Human Rights (Article 10), the International Covenant on Civil and Political Rights (Article 14), the European Convention on Human Rights (Article 6, paragraph 1). These basic international standards are binding for democratic countries in the world and in Europe, in particular for Ukraine, as they have been ratified by it. A clear understanding of and adherence to mandatory basic internationally recognized international standards by courts of all tiers will help to ensure the consistency of judicial practice. The second group of international standards in the field of justice consists of the Basic Principles on the Independence of the Judiciary, approved by the resolutions of the UN General Assembly (1985), the Bangalore Principles of Judicial Conduct, approved by the UN Economic and Social Council Resolution (2006), recommendations of the Committee of Ministers of the Council of Europe, and opinions of the Consultative Council of European Judges for the attention of the Committee of Ministers of the Council of Europe, etc. They emphasize the need to adhere to such basic international standards as guaranteeing the independence of the judiciary by the state and enshrining them in the constitution or laws of the country, and define such basic principles of the functioning of the judiciary and judges as independence, objectivity, honesty, incorruptibility, observance of ethical rules, equal treatment of all parties to the proceedings, competence and diligence of courts, and so forth. Compliance with these general international standards in the field of justice will help to ensure the integrity of the judiciary in the interests of a person. Such standards and specific recommendations for ensuring the integrity of the judiciary are broadly outlined in the Consultative Council of European Judges Opinion on the Role of Courts in Ensuring the Unity of Law (2017), namely the importance of uniform application of the law, the possibility of the use of precedents, the paramount role of the Supreme Court in ensuring the integrity of the judiciary, the creation of a mechanism for filtering appeals, the inadmissibility of conflicting decisions, the importance of the role of the courts of appeal, the solid reasons for deviation from previous judicial practice, the compliance with the reporting system of courts, the application of previous decisions to specific cases, the ensuring of the principle of independence of judges, the use of various mechanisms to ensure the integrity of judicial practice. These issues were also discussed during the presentation of the Opinion in Ukraine and holding the conference Integrity of judicial practice: the view of the European Court of Human Rights and of the Supreme Court (2019).

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12. Concepts and Contexts

Land Law ◽

10.1093/he/9780198735328.003.0012 ◽

2017 ◽

Author(s):

Ben McFarlane ◽

Nicholas Hopkins ◽

Sarah Nield

Keyword(s):

Human Rights ◽

Supreme Court ◽

Court Ruling ◽

Land Law ◽

Supreme Court Ruling ◽

Legislative Reform ◽

Private Rights ◽

The Supreme Court ◽

The Impact

This chapter explores some of the wider issues raised by the rules applying to private rights to use land, along with the nature of the challenges faced by judges and Parliament when deciding how best to develop those rules. It begins by discussing the importance of concepts and contexts in land law, as well as the tension between concepts and contexts and the effect of different judicial approaches to land law. It then considers the relative merits of judicial and legislative reform of land law and goes on to examine the impact of statutory reform, particularly of registration statutes, in land law. It also assesses the impact of human rights and regulation on land law, citing the Supreme Court ruling in Scott v Southern Pacific Mortgages Ltd (2015), before concluding with an analysis of the role of non-doctrinal approaches in evaluating land law.

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PENGARUH BANTUAN HUKUM TERHADAP MASYARAKAT MISKIN ( Meninjau Undang-Undang Nomor 16 Tahun 2011 tentang Bantuan Hukum)

Jurnal Rechts Vinding: Media Pembinaan Hukum Nasional ◽

10.33331/rechtsvinding.v2i1.78 ◽

2013 ◽

Vol 2 (1) ◽

pp. 1

Author(s):

Ihdi Karim Makinara

Keyword(s):

Human Rights ◽

Civil Society ◽

Supreme Court ◽

Research Methods ◽

Legal Assistance ◽

Legal Aid ◽

Judicial Process ◽

The Poor ◽

The Supreme Court ◽

The Law

Bantuan hukum adalah salah satu upaya mengisi hak asasi manusia (HAM) terutama bagi lapisan masyarakat termiskin rakyat Indonesia. Bantuan hukum harus dimaknai dan dilaksanakan sebagai upaya perjuangan menegakkan HAM bagi si miskin. Tujuan bantuan hukum perlu diperluas, dak saja terbatas pada bantuan hukum individual, tetapi juga struktural dan juga jangan terbelenggu dengan jalur-jalur formal semata. Dengan diundangkan Undang-Undang Nomor 16 Tahun 2011 tentang Bantuan Hukum memunculkan permasalahan bagaimana pengaruh bantuan hukum terhadap masyarakat? Dengan menggunakan metode peneli an norma f dan dengan pendekatan data secara kualita f yang dianalisis deskrip f, didapatkan kesimpulan bahwa keberadaan Undang-Undang Bantuan Hukum belum maksimal memberikan pengaruh terhadap bantuan hukum bagi masyarakat miskin, karena bantuan hukum masih dalam jalur formalis k dan masih bersifat pasif. Pendanaan penyelenggaraan bantuan hukum yang digeser dari Mahkamah Agung, Kejaksaan Agung, dan Kepolisian kepada Menteri Hukum dan HAM dan dilaksanakan oleh Lembaga Bantuan Hukum atau Organisasi Kemasyarakatan agar dapat menyentuh orang atau kelompok orang miskin, tetapi besar anggaran perlu memper mbangkan proses peradilan yang berjalan, karena dikhawa rkan dapat menghambat orang miskin dan kelompok orang miskin untuk mengakses keadilan guna mewujudkan hak-hak kons tusional mereka.<p>Legal aid is an effort to fulfill human rights, especially for Indonesian poorest society. Legal aid should be interpreted and implemented as an effort of human rights enforcement for the poor. The purpose of legal aid should be expanded, not just limited to individual legal assistance, but also structural and not fe ered by mere formal channels. By enacted the Law Number 16 Year 2011 on Legal Aid, raises the ques on of how the in fl uence of legal assistance to the society? By using norma ve research methods and approaches qualita ve data were descrip vely analyzed, was concluded that existence of legal aid has not been maximized e ff ect to legal assistance for the poor, and because of it is s ll on formalis c track and passive. Funding of legal assistance shi ed from the Supreme Court, A orney General and Police to the Ministry of Jus ce and implemented by a Legal Aid Ins tu on or civil society organiza on in order to reach people or the poor community, but the magnitude of budget needs to consider the judicial process, because it feared could hinder the poor to access of jus ce to realize their constuonal rights.</p>

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12. Concepts and Contexts

Land Law ◽

10.1093/he/9780198831877.003.0012 ◽

2020 ◽

pp. 406-424

Author(s):

Ben McFarlane ◽

Nicholas Hopkins ◽

Sarah Nield

Keyword(s):

Human Rights ◽

Supreme Court ◽

Court Ruling ◽

Land Law ◽

Supreme Court Ruling ◽

Legislative Reform ◽

Private Rights ◽

The Supreme Court ◽

The Impact

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State Administrative Court as a Means to Realize Justice

SHS Web of Conferences ◽

10.1051/shsconf/20185403007 ◽

2018 ◽

Vol 54 ◽

pp. 03007

Author(s):

Weda Kupita

Keyword(s):

Qualitative Methods ◽

Supreme Court ◽

Good Governance ◽

The State ◽

Judicial System ◽

Judicial Power ◽

State Administration ◽

The Supreme Court ◽

Judicial Authority ◽

Laws And Regulations

The existence of 4 (four) kinds of judicial environment in the Judicial Authority in Indonesia, shows a judicial system adopted in Indonesia. the State Administration Judiciary is a apart of judicial power under the Supreme Court that examines cases relating to state administrative decisions. This article discusses the resolution of disputes as a result of the issuance of state administrative decisions in the state administrative court. This problem will be answered by using the legislation approach and case approach, with analysis using qualitative methods. To test a state administrative decision, a tool is needed to validate a state administrative decision. standard for testing the validity of the state administrative decisions in the examination at the state administrative court, are the laws and regulations and the general principles of good governance.

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The Role of the Judge in Advancing Human Rights - Knight Errant or Slot Machine Automation?

Nordic Journal of International Law ◽

10.1163/157181088x00029 ◽

1988 ◽

Vol 57 (1) ◽

pp. 29-46

Author(s):

Justice Michael Kirby

Keyword(s):

United States ◽

Human Rights ◽

Supreme Court ◽

Common Law ◽

The United States ◽

Bill Of Rights ◽

The Supreme Court ◽

Long Time ◽

Protection Of Human Rights

AbstractIn this paper, the author deals with the "role" of judges in "advancing" human rights. He cautions that the needs of different countries will vary. He starts with a reference to the recent failure of Judge Robert Bork to secure confirmation to the Supreme Court of the United States. Bork had been a long time proponent of judicial restraint in the interpretation of the Bill of Rights, urging that protection of human rights should normally be left to the democratically accountable branches of government - the executive and the legislature. After reviewing the theoretical and practical arguments for and against judicial restraint, the author states his own conclusions. These are that, especially where there is a constitutional charter of rights and particularly in common law countries, judges have an inescapable function in developing the law. Their decisions necessarily advance their view of human rights. In human rights cases, they may nowadays receive assistance from international statements of human rights and the jurisprudence developing around such statements. The author appeals for an international approach but acknowledges that this will be difficult for lawyers, traditionally jurisdiction bound. But he warns that there are limits to the activism of the judiciary in controversial human rights cases. Judges themselves do well to recognise these limits both for their legitimacy and their effectiveness. An important modern challenge to the judiciary is that of resolving this dilemma between the pressures for restraint and the urgency of action.

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Building a Law of Human Rights: Roncarelli v. Duplessis in Canadian Constitutional Culture

McGill Law Journal ◽

10.7202/1000619ar ◽

2011 ◽

Vol 55 (3) ◽

pp. 437-460

Author(s):

Eric M. Adams

Keyword(s):

Human Rights ◽

Supreme Court ◽

Intellectual History ◽

Law School ◽

Supreme Court Of Canada ◽

Bill Of Rights ◽

The Supreme Court ◽

Constitutional Culture ◽

History Of

This article reveals how audiences, especially in anglophone Canada, initially received and interpreted Roncarelli v. Duplessis as a case, above all, about human rights. Ignoring the judgment’s myriad complexities, commentators eagerly situated the case within the Supreme Court of Canada’s “implied bill of rights” jurisprudence then taking shape. Part of the reason for the emphasis on Roncarelli’s rights can be traced to the manner in which Frank Scott and Louis Stein argued the case, and the language of rights employed by Justice Ivan Rand’s iconic judgment. But Roncarelli’s meaning also took shape in press accounts and editorials, radio broadcasts, case comments, and law school lectures. Exploring these often-neglected sources, this article exposes the role of constitutional culture in creating jurisprudential meaning. In turn, it also calls for greater recognition of the pre-Charter Supreme Court of Canada in contributing to Canada’s intellectual history of rights.

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Human rights in times of terror – a judicial point of view

Legal Studies ◽

10.1111/j.1748-121x.2008.00096.x ◽

2008 ◽

Vol 28 (4) ◽

pp. 493-505 ◽

Cited By ~ 6

Author(s):

Aharon Barak

Keyword(s):

Human Rights ◽

Supreme Court ◽

Judicial Review ◽

Point Of View ◽

Democratic State ◽

The Supreme Court ◽

The Status ◽

Protection Of Human Rights ◽

Israeli Supreme Court

This paper, delivered as the Second Scarman lecture, argues that the role of a judge on the Supreme Court of a democratic state is to protect both the constitution and the democracy. Judges in modern democracies should protect democracy both from terrorism and from the means the state wishes to use to fight terrorism. Judges meet their supreme test when they face situations of war and terrorism. The protection of human rights of every individual is a duty much more formidable in situations of war or terrorism than in times of peace and security. But if judges fail in their role in times of war and terrorism, they will be unable to fulfil their role in times of peace and tranquility. It is a myth to think that it is possible to maintain a sharp distinction between the status of human rights during a period of war and the status of human rights during a period of peace. The paper explores these issues through an examination of the need for a balanced and proportionate approach and by using illustrations from the example of the Israeli Supreme Court, with a focus on the role of judicial review in the ‘war on terror’.

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