Chief Justice Research Articles

Foreword

I am honoured to have been invited by the Kabarak Law ReviewVolume 2 (2023) student editors to write this foreword. Kabarak LawReview has emerged as an important scholarly journal publishingcutting edge scholarship from its students, faculty and leading scholars.In this issue for example, Professor Issa Shivji, one of Africa’s foremostscholars, has an article in response to an inaugural lecture by ProfessorJustice Willy Mutunga, Chief Justice Emeritus and Professor of PublicLaw, Kabarak University.

Reflections on South Africa's first Black Chief Justice, Ismail Mahomed

Reflections on South Africa's first Black Chief Justice, Ismail Mahomed

Comparative Exceptionalism? Strategy and Ideology in the High Court of Australia

Abstract This Article provides a rare comprehensive empirical assessment of oral argument outside of the United States. Drawing on a novel dataset over twenty-six years (1995–2019), comprising nearly one million speech episodes at oral argument in Australia’s apex court, the High Court of Australia, we are able to compare patterns of judicial behavior found in the U.S. Supreme Court to a comparable Western liberal democracy with a long tradition of judicial independence. There are a number of highly significant institutional differences between the Australian context and the U.S. Supreme Court, including a Chief Justice with additional power at oral argument, unlimited time for the length of argument, and variable panel sizes. Nevertheless, the Article finds evidence of similar patterns between Australian High Court and U.S. Supreme Court Justices. Importantly, this includes engaging in judicial advocacy on behalf of the side of the case that they ultimately support, contradicting the jurisprudential orthodoxy that the Australian judiciary is apolitical. In addition, numerous other factors that have been shown to be highly influential in the American context are also shown to be powerful in the Australian context, most notably judicial ideology, gender, and experience. This suggests that while striking institutional differences can impact oral argument and make arguments look very different, we can nonetheless discern similar underlying patterns of judicial behavior that can be recognized as strategic advocacy. All this suggests that neither system is “exceptional”—judicial advocacy may simply be part and parcel of having a strong independent judiciary.

Legal Position and Rights to Sue Community Citizens in Onrechtmatige Overheidsdaad Disputes, Post the Entrance of Law No 30 of 2014 Concerning Government Administration

UU no. 30 of 2014 concerning Government Administration explicitly states that it is possible for Government Officials to be tested by the PTUN. This is of course in order to create good government. This research is normative juridical legal research. This research will analyze the legal position and right to sue the community regarding the Onrechtmatige Overheidsdaad dispute. The research results concluded three things; First, the public has sufficient requirements to file a lawsuit because the legal position and right to sue are regulated in the Decree of the Chief Justice of the Supreme Court Number 36/KMA/SK/II/2013, Law Number 5 of 1986 concerning Administrative Justice, and others. Second, UUAP No. 30 2014 also explicitly states that the government is prohibited from abusing its authority and the PTUN has the authority to decide whether there are elements of abuse of authority. This means that Law Number 30 of 2014 provides space for the public to file a lawsuit. The three definitions of 'Community Citizens' in UUAP No. 30 2014 must be changed after the publication of PERMA Number 01 of 2023 concerning Guidelines for Adjudicating Environmental Cases.

Chief Justice Coke: Common Law v Royal Absolutism

Chief Justice Coke: Common Law v Royal Absolutism

Appointment of Supreme Court Judges in Bangladesh: An Alternative Interpretation of “Consultation”

The Supreme Court of Bangladesh in the cases of Manabjamin and Idrisur Rahman held that in the matter of appointment of Judges of the Supreme Court “consultation” with the Chief Justice with primacy of his opinion is a condition of independence of Judiciary. I argue that the appointment of Judges of the Supreme Court by the Executive does not by itself fetter judicial independence provided that the other post-appointment conditions imposed by the Constitution are met. I further argue that Article 98 (appointment of Additional Judges) and Article 99 (permitting Judges to hold ‘judicial’ or ‘quasi-judicial’ offices after retirement) are provisions that compromise with the independence of Judiciary. The Court has never identified these provisions as potential or real threat to the independence of Judiciary. The Court rather over-focused on the mode of appointment as a major aspect of judicial independence. So far as the mode of appointment is concerned, I argue that the accountability of the Executive should be ensured politically and not judicially. This assumes that the whole of the accountability of the Government cannot be claimed to be ensured legally and the vice versa. In his dissent, Joynul Abedin J argued that the mode of appointment of Judges isn’t a component of judicial independence. However, this raises the question: if the Executive disregards the Chief Justice’s opinion, what then? Abedin J didn’t address the Executive’s political accountability in such a scenario. This leaves a gap in our jurisdiction regarding the justifiability of the Executive’s political accountability in Supreme Court Judge appointments. This article aims to fill that void by advocating for political accountability of Executive solely within this context.
 Dhaka University Law Journal, Vol. 33(1), 2023 P.77-94

Human Resources Management Strategy in the Military Justice Environment: Study of State Civil Apparatus Management at the High Court of the Supreme Court of the Republic of Indonesia

The Supreme Court is a judicial institution vested with authority to exercise judicial power in four separate branches of the judiciary, namely the General Courts, Religious Courts, Administrative Courts, and Military Courts. The Military Court, in particular, serves as the judicial body responsible for upholding the law and justice for members of the Indonesian National Armed Forces (TNI). Unlike the other three branches of the judiciary, the Military Court system consists of three appellate courts and one main court. The existence of these four courts is governed by Law Number 31 of 1997 on Military Judiciary and the Chief Justice of the Supreme Court Regulation Number 125 of 2009 on the Delegation of Authority to High-Ranking Officials and Chief Justices of Appellate Courts within the Supreme Court for Signing in the Field of Personnel. However, the implementation of these regulations has still resulted in varying interpretations and paradigm differences, especially in understanding the phrase "appellate court," which has been perceived as somewhat biased and not fully implemented. This is particularly evident in the coordination and management of Civil Servants (ASN), as the Supreme Court places the Main Military Court on par with the appellate courts, although in practice, the Main Military Court resembles a "court above the appellate courts." This research employs a qualitative approach with a specific Case Study research method, focusing on the differential treatment of ASN members who represent a minority within the Military Judiciary. Ultimately, the study recognizes the need to bring together perspectives and unify understandings regarding the implementation of the Chief Justice of the Supreme Court Regulation Number 125 of 2009, analyzed through the Equal Employment Opportunity (EEO) theory, in order to harmonize the management and governance of appellate courts. This would help eliminate disparities between the High Military Court and the Main Military Court, serving as a bridge of understanding within the Military Judiciary in Indonesia.

Dualisme Kebijakan Terkait Organisasi Advokat Dalam Putusan Mahkamah Konstitusi No.101/PPU -VII/2009 dan Surat Ketua Mahkamah Agung No.73/KMA/HK.01/IX/2015)

The single bar association system adopted by Law no. 18 of 2003 concerning Advocates, which was originally used as an organizational legal umbrella that overshadowed or accommodated advocate professions in their recent careers, is currently experiencing polemics regarding legality and also ambiguity about which organization is legitimate, namely between PERADI and KAI, which claim to be legitimate organizations. Therefore it is necessary to review whether the single bar association system needs to be changed to a multi bar association system to meet the needs especially for advocates and prospective advocates so that there is no fighting over rights and authorities as a single advocate organization in Indonesia. This research is a type of normative juridical research or library research, using two approaches, namely the statutory approach and the conceptual approach which are related to the implications of the Constitutional Court Decision No.101/PPU- VII/2009, Letter of Chairman of the Supreme Court No.73/KMA/HK.01/IX/2015 and Law Number 18 of 2003 concerning Advocates related to the change from a single bar association system to a multi bar association using Gustav Radbruch's Theory of Legal Certainty. As for the research results from policy changes related to the single bar association system to become multi bar association in the substance of the revision of Law no. 18 of 2003 concerning Advocates and the Decision of the Constitutional Court No.101/PPU-VII/2009 and Letter of Chief Justice of the Supreme Court No.73/KMA/HK.01/IX/2015 are in accordance with Gustav Radbruch's Theory that the purpose of the change is none other than not to provide benefits (zwech matigheid or doelmatigheid or utility), legal certainty (rechtmatigheid) and achieving justice (gerectigheit) for the advocacy profession, especially for prospective avocados from various organizations to be sworn in after fulfilling the requirements as an advocate. Keywords: Policy Dualism; Single Bars; Multi Bars

THE REJECTION OF ROE v WADE BY THE UNITED STATES SUPREME COURT AFTER FIVE DECADES – A SEISMIC DECISION

The recent dramatic about-turn of the United States Supreme Court (USSC) in Dobbs v Jackson Women’s Health Organisation (Dobbs) in May 2022 regarding the rights of women in the United States to an abortion has caused a major uproar. Overruling one of the most famous of all USSC cases, Roe v Wade (410 US 113 (1973) (Roe)), five decades after it was decided, has had major repercussions. To fully comprehend the impact that Roe had on the United States, it is opportune to give an overview of Roe, which was a dramatic judgment and became established law for 50 years. In revisiting Roe, it is difficult to understand why such a clear and well-reasoned majority judgment has been overruled.Roe raised serious legal, moral and religious issues. The central issue was whether a woman had a legal right to an abortion. The USSC by a majority of seven to two held that woman had a constitutionally protected right to an abortion. As will be seen, Roe based its decision on its interpretation specifically of the Fourteenth Amendment of the United States Constitution.All major cases before the USSC can be put into two categories – abortion cases and all others. Abortion remains the central legal issue before that court. It defines the judicial philosophies of the justices of the USSC. It dominates their nomination and confirmation processes. The abortion controversy is sensitive and emotional. It generates vigorous, opposing views. It inspires deep and absolute convictions. A person’s philosophy, experiences, exposure to the raw edges of human existence, religious beliefs, and attitudes towards family values, and the moral standards a person establishes and seeks to observe all influence their thinking about abortion.It arguably delineates the difference between the National Democratic and Republican parties. When, during the confirmation proceedings of the present Chief Justice Roberts, he was asked about his views on Roe, he was careful not to commit himself. His answer was that Roe was settled as a precedent of the court and entitled to be respected under the principles of stare decisis, but he added that the justices of the Supreme Court do sometimes reverse their own precedents.Abortion issues remain eternal. Does a woman have a legal right to an abortion? Is the termination of a pregnancy a decision to be made by a woman and her doctor, or is the protection of potential human life a legitimate interest of the State? At what point does an unborn person acquire legal rights that are protected under the law? The majority and dissenting judgments in Roe represent the full spectrum of legal approaches to these and related questions. However, no court decision exists in a vacuum and the controversial issues raised in Roe continue to be raised and debated in the legal and political life of the United States, as they do in other jurisdictions.

Joining the Indiana Supreme Court: Rookie Year Reflections

Having just crossed the one-year mark for service on the Indiana Supreme Court, the Indiana Law Review has invited me to reflect on my experience over that first year. When Governor Holcomb announced he had selected me to succeed Justice Steven David, Chief Justice Loretta Rush offered kind remarks that included a description of this new role as “a big job” with a “high bar” and “a lot of responsibilities.” One year later, I can confirm: She was right. But it is also a rewarding and fulfilling opportunity, and as I reflect on this first year, a few things stand out.

Dasar Hukum Pengajuan Peninjauan Kembali yang Dilakukan Oleh Kejaksaan

The development of the community's need for legal renewal has given rise to many legal phenomena that have emerged at this time. One of them is the submission of legal action for Judicial Review (PK/Heirziening) which is submitted by the prosecutor, even though so far the public sees and knows that legal action for Judicial Review (PK)/Heirziening can only be submitted by the convict, his legal advisor or his heirs. This is clearly regulated in the Indonesian Criminal Procedure Law (KUHAP) that the legal action for Judicial Review (PK)/Herziening is carried out by the convict (can also be submitted through his legal advisor) or his heirs. The legal action for Judicial Review (PK)/Herziening by prosecutors has been carried out repeatedly in Indonesia , and the Chief Justice at the Supreme Court has several times granted the prosecutor's judicial review (PK)/Herziening. The formulation and historical background of the Criminal Procedure Code is clear that PK is the right of the convict or his heirs. The PK requested by the prosecutor has so far violated the regulations legislation. The Criminal Procedure Code does not at all mention that prosecutors can apply for PK, historically PK is actually given as a last resort to the convict or his heirs to change his 'fate'.

Law Making for Women Empowerment in Gandaki Province, Nepal

The main objective of this study was to evaluate the status of women's empowerment through lawmaking in Nepal's Gandaki Province. Women face oppression and battle for empowerment. According to Nepal's new constitution, women now enjoy legal protections and rights. Similarly, major political parties such as Nepali Congress, Nepal Communist Party UML, and Nepal Communist Party Maoist, which have led the Nepal government from time to time now have the chance to hold positions of leadership, including those of chief justice of the supreme court of Nepal, speaker of the House of Representatives, and President of the federal democratic republic of Nepal. Even though Nepal's Dawarika Devi Thakurati was the first minister in 1959. The Constitution of Nepal (2015) has made the provision of 33% inclusion of women in all the sectors of government including the federal, the provincial, and the municipal. Women are participants at various levels such as legislature, executive, professors of universities, civil servants, Nepal police, Nepal Army, and teacher. Women are currently involved in planning, implementing, and formulating policies. However, they have to overcome many obstacles in order to pursue their opportunities. Nepal is a developing nation that has made an effort to empower women and has given them good opportunities for the country's overall development. In Nepal, women have equal access to opportunities in the social, economic, political, and cultural sectors as well as Nepal's economic development. The present study reveals that the Gandaki province's legislators have played a crucial role in the overall development of this province, and just like the women legislators in the other seven provinces, they empower themselves and institutionalize women's rights by upholding democratic values and norms.

Hoist by the Colonizer’s Own Device? Law Reporting in Mandatory Palestine

Abstract This article tells the history of the Palestine Law Reports series (PLR), introduced in 1934 to Mandate-ruled Palestine. It unearths discussions that preceded the PLR’s publications following a campaign for authorized law reporting launched by lawyers in Palestine in the 1920s to 1930s. Canvassing a broad institutional context for the emergence of the PLR, we argue that in launching the campaign local lawyers sought not only to render Palestinian common law more predictable and amenable to professional handling, but also to approximate the role granted in the metropole and the common law tradition to practicing lawyers in propagating binding precedents. Local lawyers wanted to have a slice of the action of creating a local common law and in designing the Palestinian legal landscape. Unsurprisingly, they were met with the opposition of Chief Justice McDonnell, who sought to control the PLR enterprise, resisting non-judicial involvement in its editing and production. Finally, the article argues that, regardless of McDonnell’s motivations, from an institutional point of view, his achievement in laying down a foundational institution for the generation of a local common law is momentous. He therefore emerges from our analysis as one of the chief architects of the common law in Palestine, and—to this day—in Israel.

IMPLEMENTATION OF RESTORATIVE JUSTICE SYSTEM FOR DRUG ABUSERS

Nowadays, narcotics and drug crimes have been transnational crime that conducted with sophisticated technology. Then, law enforcement officials are expected to prevent and solve these crimes in order to improve the morality and quality of human resources in Indonesia, especially for the nation’s next generation. Therefore, this research aims to find out the implementation of restorative justice systems for drug abusers in Indonesia. This research is a normative juridical approach. The normative juridical approach is to use legislation, examine all laws and regulations related to the legal issues. The restorative justice approach can only be applied to addicts, abusers, victims of abuse, drug dependence, and one-day narcotics use, as stipulated in Article 1 of Joint Decree of Chief Justice of Supreme Court, Minister of Law and Human Rights, Minister of Health, Minister of Social Affairs, Attorney General, Chief of Police, Head of National Narcotics Agency Number 01/PB/MA/111/2014, No. 03/2014, No. 11/2014, No. 03/2014, Number Per 005/A/JA/03/2014, No. 1/2014, Number Perber/01/111/2014/BNN on Handling Narcotics Addicts and Victims of Narcotics Abuse into Rehabilitation Institutions.

ANALISIS YURIDIS PARATE EKSEKUSI DALAM PASAL 6 UNDANG-UNDANG TENTANG HAK TANGGUNGAN YANG BERTENTANGAN DENGAN PASAL 224 HIR

In carrying out the execution of mortgage rights, if the debtor is negligent or defaults, a warning will be given to the debtor to pay off the debt. However, if the debtor does not respond, direct execution can be carried out on his own power (parate executie) without having to ask for fiat from the Chief Justice and without having to follow the rules of the game in the procedural law. If one looks at the UUHT there is confusion, namely that it is contained in article 6 UUHT with the General Explanation number 9 UUHT and the explanation of Article 14 paragraphs (2) and (3) UUHT which states that the implementation of parate executie is carried out based on Article 224 HIR and Article 258 Rbg. This condition will lead to multiple interpretations. This research will discuss how is the implementation of parate executie mortgage rights based on the provisions in the mortgage rights law? And what are the legal consequences if the parate executie in article 6 of the law on mortgage rights contradicts the provisions of article 224 HIR? This study uses a normative legal approach. The results of this study indicate that parate executie mortgage rights are carried out directly and without fiat from the court, this is different from the general explanation number 9 UUHT which states that parate executie implementation is carried out based on Article 224 HIR and Article 258 Rbg, then based on the asymmetry of these rules causes a conflict of norms between Article 6 UUHT and Article 224 HIR which causes several legal consequences, one of which is the dualism of the judge's opinion in handling parate executie cases.

Dualisme Kebijakan Terkait Organisasi Advokat Dalam Putusan Mahkamah Konstitusi No.101/PPU -VII/2009 dan Surat Ketua Mahkamah Agung No.73/KMA/HK.01/IX/2015)

The single bar association system adopted by Law no. 18 of 2003 concerning Advocates, which was originally used as an organizational legal umbrella that overshadowed or accommodated advocate professions in their recent careers, is currently experiencing polemics regarding legality and also ambiguity about which organization is legitimate, namely between PERADI and KAI, which claim to be legitimate organizations. Therefore it is necessary to review whether the single bar association system needs to be changed to a multi bar association system to meet the needs especially for advocates and prospective advocates so that there is no fighting over rights and authorities as a single advocate organization in Indonesia. This research is a type of normative juridical research or library research, using two approaches, namely the statutory approach and the conceptual approach which are related to the implications of the Constitutional Court Decision No.101/PPU- VII/2009, Letter of Chairman of the Supreme Court No.73/KMA/HK.01/IX/2015 and Law Number 18 of 2003 concerning Advocates related to the change from a single bar association system to a multi bar association using Gustav Radbruch's Theory of Legal Certainty. As for the research results from policy changes related to the single bar association system to become multi bar association in the substance of the revision of Law no. 18 of 2003 concerning Advocates and the Decision of the Constitutional Court No.101/PPU-VII/2009 and Letter of Chief Justice of the Supreme Court No.73/KMA/HK.01/IX/2015 are in accordance with Gustav Radbruch's Theory that the purpose of the change is none other than not to provide benefits (zwech matigheid or doelmatigheid or utility), legal certainty (rechtmatigheid) and achieving justice (gerectigheit) for the advocacy profession, especially for prospective avocados from various organizations to be sworn in after fulfilling the requirements as an advocate. 
 Keywords: Policy Dualism; Single Bars; Multi Bars

The Authority Of The DPR On The Appointment and Dismissal of Constitutional Judges

Based on the 1945 Constitution, 3 institutions are authorized to appoint constitutional judges, including the Representative Council, Supreme Court, and the President. In the event that the dismissal of constitutional judges can be carried out if they have fulfilled the criteria contained in article 23 of Law No.7/2020. Paragraph (4) of the same article confirms that those with authority to dismiss a constitutional judge are the Chief Justices of the Constitutional Court and the President. However, in 2022 there is a polemic, namely the form of intervention against the dismissal of constitutional judges carried out by one of the legislative bodies, namely the Representative Council of Indonesia, which is a big question mark. What kind of authority does the Representative Council have as a legislature over the CC? Is this action justifiable and in accordance with applicable law? This legal research with a normative juridical approach examines secondary data in books, journals, and legislation as a reference. The result of this study indicates that the Representative Council’s over CC as contained in the 1945 Constitutions is very limited in proposing 3 candidates for constitutional judges and has no authority at all to dismiss them. The Representative Counsil’'s decision to dismiss constitutional judges is an act of offending the principle of the independence of the Constitutional Court and has no legal basis.

The Conflicting Synthesis of the Taliban’s Religious and Cultural Identity

Though there is no constitution or founding document at present, a book written in 2022 by Abdul Hakim Haqqani, the Chief Justice of the Taliban’s government, titled The Islamic Emirate and Its System (al-Imarat al-Islamiat wa-Manzumatuha) appears to be a blueprint for the newly minted Islamic Emirate (IEA). This is the first intentionally prepared written source by a senior Taliban official on the intellectual foundations of the IEA structure. The book addresses various subjects, such as the sources of Islamic legislation, independence, and the principles of politics, judiciary, and economics. It is a distillation of the intellectual foundations, and it offers new insight into the Taliban's political strategy. In this essay I present some of the central ideas of Haqqani’s book and question its implications for understanding the conflicting synthesis of the Taliban’s religious and cultural identity.

CITIZEN LAWSUIT: PELINDUNG HAK KONSTITUSIONAL DALAM SISTEM HUKUM INDONESIA

The 1945 Constitution established constitutional rights for citizens and emphasized the need for public participation to safeguard these rights. Citizen lawsuits serve as a form of public participation, but the absence of a legal basis in Indonesia has created uncertainty in their implementation. This study aims to examine the mechanism of citizen lawsuits within the Indonesian legal system, presenting it as a juridical alternative for protecting citizens' constitutional rights. The author utilized a normative legal research method with a qualitative and case-based approach through literature review. Citizen lawsuits enable citizens to take legal action against state officials who have neglected their rights. Courts have relied on jurisprudence and guidelines for handling environmental cases, such as the Chief Justice of the Supreme Court of the Republic of Indonesia Decree Number 36/KMA/SK/II/2013. Unlawful acts falling under the executive's jurisdiction serve as the subject of citizen lawsuits. Research on various citizen lawsuit cases demonstrates their effectiveness in defending citizens' constitutional rights. However, financial and knowledge limitations pose obstacles. Financial challenges can be addressed through community collaborations, pooling resources. To overcome knowledge limitations in filing citizen lawsuits, a dedicated regulation outlining the mechanism should be established.

An Instance of Corruption during the Hajj and Pakistan's Far-Superior Judiciary System

The Supreme Court of Pakistan received a letter from the government of Saudi Arabia claiming corruption in the Ministry of Religious Affairs' hajj arrangements. In response to the letter, the court invited the Secretaries of religious and foreign affairs to clarify their respective positions. A committee of lawmakers was formed to investigate the situation. On September 1, 2010, the committee issued a report to the prime minister of Pakistan and the chief justice of the supreme court that confirmed Hujjaj's building-rental irregularities. In response to the complaints of several Hujjaj, Justice Khalil Ul Rehman Ramday forwarded the summary with the following comments: "Many individuals came to me in Makah Mukarramah.Complaints were even submitted in writing. "Action as may be thought suitable to eliminate the sufferings of thousands of Hajjis who spend their entire lives saving pennies to perform Hajj, only to have the money they've earned through their blood and sweat lost." The article explores the Hajj corruption issue and the role of Pakistan's Supreme Court. A qualitative study employing content analysis as an analysis method has been undertaken. For primary sources, judicial decisions, the statements of prominent jurists, parliamentary actions, and biographies have been consulted.