Constitutional Law Research Articles

Kajian Hukum Tata Negara terkait Pembatasan Kebebasan Berpendapat di Media Sosial di Era Pandemi COVID-19: Pendekatan Deskriptif Kualitatif

The COVID-19 pandemic has driven an increase in social media activity as a means of communication and expressing opinions, but it has also introduced new challenges to freedom of expression. This study aims to analyze policies restricting freedom of expression on social media during the pandemic from the perspective of constitutional law. A qualitative descriptive approach was employed, with data collected through in-depth interviews, focus group discussions (FGDs), and legal document analysis. The study involved 15 informants, comprising legal experts, human rights activists, and social media users. Findings indicate that 60% of informants consider the restriction policies to be ambiguous and prone to misuse, while 40% support these policies for maintaining social stability. In this context, the Electronic Information and Transactions Law (UU ITE) serves as the primary legal basis for these policies. Yet, its implementation is often criticized for conflicting with democratic principles and human rights. The study also reveals that while the policies have successfully reduced the spread of false information, their impact on freedom of expression is significant, including the removal of critical content targeting the government. This study highlights the need for more transparent, fair, and evidence-based policies to balance public protection and respect for individual rights. It contributes to constitutional law discourse by providing recommendations for policy revisions that are more responsive to the challenges of the digital era, particularly during crise

LEGAL BASIS FOR ADOPTION NEW SUBJECTS TO THE RUSSIAN FEDERATION. PART 2. CONSTITUTIONAL PROCEDURE

The article is a continuation of the study of the legal basis for the admission of new subjects of federation into Russia, and it is devoted to the disclosure of the constitutional procedure of admission. What sounds a special emphasis in the work is a formal-legal approach to the disclosure of the subject of the study. Allocation of six stages of the procedure of admission of new subjects of federation into Russia is justified. Critical analysis of proposals to change the federal constitutional law ‘On the procedure for admission to the Russian Federation and the formation of a new subject of the Russian Federation in its composition’ is critically analysed.

Analisis dan Implikasi terhadap Penegakan Hukum di Indonesia

The constitutional procedural law in Indonesia plays a crucial role in upholding constitutional supremacy, with the Constitutional Court (MK) serving as the guardian that reviews laws and resolves constitutional disputes. This article discusses the procedural law in MK, the challenges it faces, and its impact on law enforcement and justice in Indonesia. The enforcement of justice in Indonesia remains far from ideal, reflected in the chaotic legal system, structure, and culture. This study examines the Kanjuruhan Tragedy to provide an insight into the practice of law enforcement. The findings show that the state is legally responsible for the incident due to its failure to protect and fulfill the human rights of the victims. However, law enforcement in Indonesia remains discriminatory, sharp against the lower classes, yet blunt against the elites. It is hoped that law enforcement officers and the government will be more attentive and aware of the importance of fair justice enforcement, ensuring that all citizens receive legal certainty, order, and protection based on truth and justice.

The Role of the U.S. Supreme Court in the Constitutional Interpretation and Law-Making

The highest judicial authority in the United States, the Supreme Court, plays a crucial role in interpreting the Constitution and in constitutional lawmaking. A primary reason for this is the extremely succinct formulation of most of the U.S. Constitution's text. Its instrumental nature provides the Supreme Court with ample opportunities to interpret its provisions before applying them to specific legal and factual circumstances. Additionally, the Constitution's text did not address many fundamental issues of constitutional law, which its drafters and the ratifying bodies at the end of the 18th century could not have foreseen.

Our law is constitutional law, and it has rights

AbstractIndigenous Southern Africans say that their laws are fundamentally grounded in the principle of Ubu‐Ntu (humane‐ness), but their communities are found empirically to often show the opposite of that law. Why is this? What is the law to which they lay claim to having? What are its roots and how can we reliably trace and know them? Reverting to the deep (i.e., unrecorded/unwritten precolonial) history of the Ntu, who make up the largest language group of Indigenous inhabitants of Sub‐Saharan Africa, this article digs into the deep origins of Ntu identity and being. Based on evidence drawing simultaneously from the alter‐Native intellectual roots of the Ntu and ethnographic findings on articulations of vernacular law in Nguni‐speaking society in South Africa today, the article makes the decolonizing case that Indigenous law lays claim to having its own constitutional law (in which its peoples’ social compact is grounded), with its very own conception of rights, that is wholly due (legal) recognition and respect in place of laws born of colonial logics.

Konflik Kasus Papua dalam Perspektif Hukum Tata Negara Darurat

This research aims to examine how the Papuan conflict from the perspective of emergency constitutional law. The perspective of emergency constitutional law in this study discusses more about the development of the Papuan case from time to time. We all know that the conflict in Papua has yet to be resolved. The role of the TNI and Police in maintaining defense and security in Papua makes its own attention not only in the national arena but also in the international arena. The method of data collection is carried out by means of literacy studies and laws and regulations and conducting qualitative descriptive data analysis to find out how the Papuan conflict from the perspective of emergency constitutional law. Both internal and external threats due to the desire of the Papuan people to separate themselves from Indonesia.

The Reluctance of Member States in Implementation of the African Court of Human and Peoples’s Rights Decisions: Experience from Rwanda and Tanzania

It is trite understanding by almost all human rights lawyers that under International Human Rights Law, once a state ratifies a treaty and becomes party to the said international instrument; such a State is under obligations to promote; respect, protect and fulfil human rights. However, reports show that only one State has fully complied with the Court’s decision; some partially but many States against which judgments have been pronounced have not shown any endeavour to heed to the court’s decisions which is centrally to Article 30 of the Protocol. This study focuses on the reluctance of member States to the Protocol as among the factors that impedes implementation and compliance with the decisions and judgements of the Court as exemplified by Tanzania and Rwanda. Objectively, the research was centred on assessing the extent to which member States of the ACHPR comply with international legal commitments recalling the decisions and judgments of the Court with reference to Tanzania and Rwanda. The study employed qualitative research approach whereby 21 interview from the Office of Attorney General, Judiciary, Tanganyika Law Society, Legal and Human Rights Centre, Ministry of Justice and Constitutional Affairs, Legislature, and Law Reform Commission was conducted to collect primary. The data collected was subsequently analyzed qualitatively through narrative data analysis approach where the research question was affirmatively concluded. The findings underscore the necessity of member States to change their habit of being reluctant on implementation and compliance with the Court’s decisions and judgment in order to fulfil the legal accountability and enhance justice within the region. The study recommends that in order to effectively implement Court’s orders, member states must refrain from reluctance on heeding to what the Court has decided.

Juridical Analysis of the MBKM Internship Program from the Perspective of Employment Law and Constitutional Law: Between Fulfilling Student Rights and Obligations of Educational Institutions

This research aims to analyze the impact of the Freedom to Learn-Independent Campus (MBKM) Program on students' rights in the context of higher education in Indonesia. The MBKM Program is expected to bridge the gap between education and industry, providing students with opportunities to develop practical skills. However, this research identifies several challenges faced by students, particularly concerning their legal status as interns and the protection of their labor rights. The research employs a qualitative analysis method with a case study approach, which includes interviews and the collection of secondary data from relevant documents and reports. The findings indicate that although the MBKM Program offers significant benefits in enriching students' learning experiences, the current regulations remain unclear and lack sufficient oversight, which may lead to exploitation. Therefore, this research recommends the need for harmonization between educational and labor regulations, as well as strengthening oversight systems to ensure the protection of students' rights. This study aims to contribute to the development of fairer and more sustainable education policies in Indonesia.

The Role of the State in Health Law Enforcement in Indonesia: A Constitutional Law Perspective

The role of the state in enforcing health law in Indonesia is a crucial aspect aligned with constitutional provisions, particularly Article 28H paragraph (1) of the 1945 Constitution, which emphasizes the right to health. The state is expected to create a legal system that protects and fulfills the health rights of the community through the formulation of policies, regulations, and oversight of health service delivery. The implementation of Law No. 36 of 2009 on Health underscores the government's responsibility to provide accessible and quality health services. Health law enforcement includes actions against violations, including sanctions for providers that do not comply with standards. In this context, the state must also respond to health emergencies, such as pandemics, with swift and effective measures. Additionally, public participation in health decision-making processes is vital. In the long term, political commitment and adequate resource allocation are necessary to ensure the sustainability of health programs. Through a holistic, human rights-based approach, the state can create an inclusive and quality health system for all members of society.

제왕적 대통령제의 오늘과 내일

South Korea's presidential system is somewhat alien to the Korean political landscape in the purest sense of the word. With each change of government, there are often pledges to reform the so-called Imperial Presidential System, in which power is concentrated in the hands of a single president. The factors that led to the emergence of the Imperial Presidential System are that the constitution and laws give the president excessive powers, including the right to appoint personnel, and the lack of independence of various government agencies. In addition, the president's will to call for the separation of powers at the beginning of his term has been compromised by power leaks towards the end of his term, leading him to take a position that seeks to concentrate power. As these issues could no longer be resolved politically, constitutional discussions on reorganizing the government structure to address them legally have continued, but no consensus has been reached. While scholars and politicians agree on the goal of decentralizing the power concentrated in the hands of the president, they disagree on whether the solution to the problem should be to preserve the presidential system or to try to improve it by abolishing it. Previous governments have proposed constitutional reforms that attempt to decentralize power in various ways while preserving the presidential system. This article analyzes the factors that led to the imperial presidential system, focusing on the previous government's constitutional proposals, and explores the direction of power distribution through the discussions of the National Assembly and the Constitutional Law Association. This may have implications for providing a basis for resolving the imperial presidency in future constitutional discussions.

Modernization of national judicial systems in the context of international legal standards

It is indicated that the foreign experience of modernizing national judicial systems by implementing international standards into constitutional laws to implement the provisions of the European Charter on the Status of Judges of 1998 (hereinafter the European Charter) is important, where it is determined that «in every European state, the basic principles of the conduct of judges are laid down in internal regulations at the highest level, and the main provisions at least at the legislative level.» Attention is drawn to the need for the implementation of this standard confirmed in another international document, namely: in the Explanatory Note to the European Charter on the Status of Judges dated July 10, 1998, which reads: «The basic principles on which the law on the status of judges is based, which defines guarantees of competence, independence and impartiality of judges and courts should be adopted in normative acts at the highest level, that is, in the Constitution, in the case of European states, which created such a basic text full of difficulties and inaccuracies. The author comments on the above provisions. Firstly, in the European Charter and the Explanatory Note, which has the status of a Model Code, in an imperative form (such phrases as: «in every European state», «must be adopted») are used, it is determined that the international standard must be implemented in regulatory acts at the highest level, i.e. in the Constitution. Secondly, this standard must be defined «in every European state», that is, no European state can evade the implementation of the standard or ignore it. But, the question arises: are we talking about all the countries of Europe (geographical approach) or only the states of the Council of Europe or the European Union or the signatory states of the European Charter (institutional approach)? Thirdly, the Explanatory Note recognizes the fact that the main text of the European Charter is full of difficulties and inaccuracies, that is, the balance and clarity of the legal wording could be better. And where are the guarantees that the text of the Explanatory Note (Model Law) also does not contain inaccuracies or ambiguities? It is noted that, in general, the texts of each international document «suffer» from ambiguities and inaccuracies, and over time require partial additions or complete revision. In the opinion of the author, providing evaluation judgments in an international document about another document is incorrect and unnecessary. In fact, these claims should be addressed not to the document itself, but to those who drafted, accepted and signed it.

IMPACTO DA REFORMA DA PREVIDÊNCIA NA APOSENTADORIA POR INCAPACIDADE PERMANENTE PREVIDENCIÁRIA: UMA ANÁLISE JURÍDICA DA INCONSTITUCIONALIDADE DO ART. 26, § 2º, III DA EC 103/2019

The present study analyzes the impacts of the Pension Reform introduced by Constitutional Amendment No. 103/2019 on the granting of permanent disability retirement, with a focus on Article 26, §2, item III. The topic is justified by the need for a deeper understanding of the history of social security and the evolution of this benefit, analyzing the calculation rules before and after the promulgation of the Constitutional Amendment, and the various ways in which insured individuals under the general social security system are affected. The study aims to provide an accurate analysis of current legislation to evaluate the fairness of the calculation method established by the Pension Reform. The methodology employed involves a rigorous examination of the 1988 Federal Constitution and its constitutional principles, the referenced Constitutional Amendment, Law No. 8.213/91, Decree No. 3.048/99, case law from regional courts and the Federal Supreme Court, and scholarly interpretations from experts such as José Antônio Savaris, Hugo Goes, and Gustavo Beirão Araújo. The main findings indicate that, despite the approval of the Constitutional Amendment, several constitutional principles and laws have been violated by the new calculation rules for permanent disability retirement benefits. These rules disadvantage insured individuals in various aspects, a view that has already been adopted by courts and supported by legal scholars, although a decision is still pending before the Federal Supreme Court. In conclusion, Article 26, §2, item III of Constitutional Amendment No. 103/2019 is inconsistent and should be declared unconstitutional, as it imposes a scenario of true social regression.

Hubungan Pancasila dan Hukum Konstitusi : Implikasi Terhadap Pengakuan dan Perlindungan Hukum Adat di Indonesia

This article discusses the relationship between Pancasila as the state ideology and constitutional law in Indonesia, particularly in the context of the recognition and protection of customary law. Using a normative juridical research method, the study examines the relevance of Pancasila in shaping the legal foundation and state policies that support the sustainability of customary law. The study also highlights the constitutional implications in providing formal recognition of the existence of customary law and the efforts to protect the rights of indigenous communities in Indonesia.The research findings indicate that Pancasila, as the state ideology, plays a crucial role in guiding constitutional law to protect local wisdom and cultural diversity, including in matters of customary law. Although the recognition of customary law has been accommodated within the constitution, its implementation still faces various challenges, particularly related to conflicts between customary law and national law. Therefore, synergy between Pancasila and constitutional law is needed to strengthen the protection of customary law within the framework of the Indonesian legal system.

Peran Pancasila dalam Pencegahan dan Pemberantaan Korupsi : Perspektif Hukum Tata Negara

Abstract. Pancasila has an important role in various aspects of life, including in efforts to prevent and eradicate corruption. This research aims to examine the role of Pancasila's contribution in the context of constitutional law, especially in terms of integrity and public ethics. Using qualitative research methods and descriptive analysis, this study investigates how Pancasila values such as social justice, fair and civilized humanity, and unity can be integrated into the legal system and state administration to prevent and eradicate corruption. The results of this study show that the use of Pancasila principles in laws and public policies has significant potential to improve transparency and accountability. The study also identifies challenges and barriers to the implementation of Pancasila values and provides recommendations to improve the effectiveness of corruption prevention and eradication in Indonesia. The findings support the argument that Pancasila serves not only as an ideological basis, but also as a practical foundation in building a legal system with integrity.

Institutional corruption: Some issues

AbstractInstitutional corruption can be defined as a corrupt act by a public or private agent that is justifiable legally. This arises out of the degree of discretion of the constitutional framework, missing institutions, laws, and regulations. The ability of powerful agents to influence the making and implementation of laws and regulations is the source of institutional corruption. This article develops a conceptual framework of institutional corruption and applies some of the dimensions to the issue of privatization of nonrenewable natural resources in India. We analyze three case studies in oil and gas, coal blocks, and bauxite mining. We observe that it is important for developing economies to establish independent and autonomous regulatory institutions and the Supreme Court to minimize the costs of institutional corruption. In democracies, freedom of civic bodies and the media is also a necessary condition.

Efektivitas Sistem Threshold dalam Presidential Threshold di Indonesia

The Presidential Threshold is a rule that sets the minimum threshold percentage of votes that a political party is required to achieve, in order to nominate or carry presidential and vice presidential candidates in the election contestation. This system is designed to filter out candidates who are considered qualified, the hope is that only candidates with high electability levels can run. However, its implementation is often a source of controversy because it is considered to hamper potential candidates from small parties or independents who may have quality, but are less known to the public. As a result, the dominance of major parties in the presidential candidacy limits people's choices and does not reflect the existing political diversity. In the Indonesian system of government, where the president and the DPR are independent institutions, the Presidential threshold system is considered incompatible with the principles of inclusive and representative democracy. This provision was first implemented through Article 5 paragraph (5) of Law Number 23 Year 2003 on the General Election of the President and Vice President, and has continued to be used in subsequent presidential elections. This article focuses on the effectiveness of the Presidential Threshold in the Indonesian political context and its impact on political participation, democratic representation, and constitutional law.

The Law-Making Process in the Legal System of Afghanistan

The legislative process in Afghanistan, which is a thorough and multi-phase process with roots in both historical and modern frameworks, is examined in this paper. To guarantee efficient governance and social fairness, the Afghan legal system integrates ideas from Islamic jurisprudence and constitutional law. Drafting, review, approval, endorsement, publication, deadline, and enforcement are all steps in the process that are intended to create laws that meet both domestic and global requirements. From Amir Shir Ali Khan's rule to the organized processes of the current National Assembly, Afghanistan's legislative process has undergone substantial changes over the years. Every step of the legislative process ensures compliance with the Constitution and Islamic Sharia by addressing particular-legal, social, and administrative issues. The paper identifies the legislative system's shortcomings and accomplishments and offers recommendations for enhancing the law-making process to promote good governance and the rule of law.

HOW NOT TO DO EUROPEAN INTEGRATIONS: BOSNIA AND HERZEGOVINA AND LEGAL CHALLENGES IN ACCESSION PROCESS TO EUROPEAN UNION

Background: Bosnia and Herzegovina, with its complex constitutional and legal system, is facing many difficulties in its progress toward European Union membership. These challenges have been worsened by political instability, exacerbated by geopolitical shifts in Europe following Russian aggression on Ukraine. Legal complexities in the constitutional order of Bosnia and Herzegovina are often used to halt the country's progress and divert it from its European trajectory. This article analyses the specific instances of very unfavourable legal solutions that are hindering the EU accession process, as well as the recommendations put forth by the EU Commission aimed at removing these legal obstacles. There is an urgent need for reform of constitutional and legal rules to enable the country to effectively continue its EU accession path. The importance of the EU membership perspective for Bosnia and Herzegovina extends beyond simply joining a desirable club of prosperous countries; the reforms required during the EU accession process are needed to strengthen the efficiency of state institutions and secure lasting peace in the country and region. As such, the urgency and potential impact of these proposed legislative changes cannot be overstated. Methods: The research primarily employs a combination of analytical, normative, and comparative methods to examine the legal system and chronology of the integration process. The legal historical method is also used where appropriate. The research focuses on the content of constitutional norms, relevant legislative acts in Bosnia and Herzegovina, and legislative acts of the European Union and other countries. These legislative acts are compared with EU recommendations and legislation from other EU member states to identify the discrepancies. The article provides an overview of the legal framework governing EU integrations in Bosnia and Herzegovina, including norms of international law, constitutional law, national legislation, and EU law that are negatively impacting the EU accession process, and offers certain recommendations for their improvement. Results and conclusions: The research has identified certain norms of constitutional and legislative origin in the legal system of Bosnia and Herzegovina that are harming the country's ability to effectively engage in the EU accession process. Through a normative approach, the article gives recommendations for their improvement, which are in line with the standards set by the institutions of the EU. Amending these problematic legal frameworks would remove their use as political tools aimed at halting the country’s progress in the EU integrations.

On the Issue of Development of the Constitutional Right to Judicial Protection

The right to judicial protection in Russia in its entirety was enshrined only in the 1993 Constitution. The constitutional consolidation of judicial protection of rights and freedoms marked a new stage in the constitutional development of our country, a departure from the long-prevailing tradition of the priority of the state over the individual. It seems important to trace the evolution of the constitutional design of the right to judicial protection in the Russian Federation and foreign countries. Of significant interest is the analysis of draft constitutions proposed by various authors and groups of public and scientific figures during the constitutional process of 1990–1993. In Russian constitutional law, undeservedly little attention is paid to the history of the creation of the Russian Constitution and the search for the origins and reasons for the emergence and consolidation of individual institutions at the constitutional level. The article, based on an analysis of the constitutional texts of foreign constitutions and acts of constitutional legislation, drafts of the Constitution of the Russian Federation and materials of the Constitutional Commission and the Constitutional Conference, makes a conclusion about the consolidation of judicial protection of rights and freedoms as an integral attribute of the rule of law. Despite the long history of establishing judicial protection in individual countries, in Russia this right was fully consolidated much later. The constitutional formulations of the current Constitution reflect almost all the substantive characteristics of this right inherent in democratic constitutions of the modern generation. Certain aspects of the law are interpreted by the Constitutional Court of Russia. At the same time, the Constitution reflects the aspirations of the participants in the constitutional process of the 90s to consolidate effective guarantees of judicial protection of the rights and freedoms of man and citizen, primarily from the arbitrariness of state bodies and officials.

Constitutionalization as a category of constitutional law science

Constitutionalization as a category of constitutional law science