Justice Of Constitutional Court Research Articles

RECALL ASWANTO: TERTUTUPNYA RUANG DISAGREEMENT ANTARA PEMBENTUK UNDANG-UNDANG DAN MAHKAMAH KONSTITUSI

This article discusses the recall directed to Justice Aswanto of the Constitutional Court during his tenure by the House of Representatives (DPR). The DPR recalls Justice Aswanto due to its disagreement with his judicial performance. According to the law, the Constitutional Court Justices may only be removed from office during his/her tenure through the Ethical Council of the Constitutional Court. This article argues that the recall is inconsistent with the principle of security of tenure and, therefore, contradicts the principle of judicial independence. Unfortunately, this issue is not the main problem. The primary issue is that the legislature has no room to disagree with the Constitutional Court's interpretation in reviewing the constitutionality of legislation. This issue arises because the Constitution, UUD 1945, allocates the finality of the constitutional review mechanism in the judiciary. In solving the issue, this article refers to the Canadian model of constitutional review. The concept of the Canadian model is a judicial review with legislative finality.

Holistic Supervision of the Judges of the Indonesian Constitutional Court

The issuance of the latest Constitutional Court Law, Law Number 7 of 2020 on the Third Amendment to Law Number 24 of 2003 on the Constitutional Court, does not bring significant changes in the mechanism for monitoring constitutional court justices and the enforcement of the Code of Ethics and Conduct of Constitutional Justices. This paper aimed to offer a more holistic means of supervising constitutional court judges. The idea is a triangle of supervision consisting of internal control of individual judges, internal control of the institution, and external supervision.
 Keywords: Supervision of Judges/Justices, Constitutional Court, Code of Ethics, Judges Integrity

Doubting the Impartiality: Constitutional Court Judges and Conflict of Interest

The Constitutional Court ruling on the third amendment to the Law on the Constitutional Court is worth discussing. In the judicial review, the justices judged a case in which they have interests. The interests are related to a requirement for being a Constitutional Court justice, term of office for Constitutional Court justices, and term of office for the chief justice and deputy chief justice. Can they be impartial? This study is aimed at three things. First, analyzing their interpretation through legal annotation. Second, identifying impacts the ruling has on the Constitutional Court. Third, providing a road map for judicial review related to Constitutional Court judges. This is mixed legal research using primary and secondary data. This study has found that the judges are not impartial due to conflict of interest. They have compromised universal principles of the judiciary. For the sake of impartiality, they should not be judges in their own cause. Instead, the Supreme Court should have the authority to review legislation on them.

Putusan Open Legal Policy Ketentuan Tindak Pidana Zina Perspektif Maqashid Syariah

Constitutional Court Decision No. 46/PUU-XIV/2016 which rejects the expansion of the meaning of adultery in the Criminal Code has become a hotly debated topic. Some people think that the Constitutional Court should have the courage to make legal breakthroughs on this very important issue. However, the Constitutional Court Justices are of the opinion that the expansion of the meaning of adultery is not within their jurisdiction.
 This type of research is a normative juridical research, with a statute approach. The nature of the research is descriptive analytical, using a knife of maqa>s{id sharī'ah concept analysis.
 From the results of the research, it was concluded that first, the contextualization of Jaseer Auda's maqa>s{id sharī'ah concept against the arguments of the Constitutional Court judges in family resilience was actually quite well represented. However, the judges tended to choose the cause of the damage to be more due to the existence of a void in the law, in which the authority to fill in the law could only be exercised by the Indonesian Legislation Body, namely the Indonesian House of Representatives. Second, LGBT are the most massive and dangerous implications indirectly in the decision of the open legal policy. In addition to the harm in the form of diseases caused by these actions, the threat of nasab (hifdz al-nasab) which is guarded by Islam itself and the tarnishing of honor that is contrary to Islamic teachings in order to maintain the honor of oneself and others (hifdz al-'irdh). Third, Realistic efforts to prevent cohabitation and the potential for violence against women, namely through the contemporary maqa>s{id system approach, include the following, namely by limiting the facilities that are feared to cause convenience in cohabitation behavior.

To Live and to Learn: The EU Commission’s Failure to Recognise Rule of Law Deficiencies in Lithuania

During the last decade, it has become apparent that the European Union (EU) Commission is failing to halt rule of law decline in Poland and Hungary. However, has the Commission learnt from its experience in handling rule of law decline in these countries? This article suggests that not only has the EU Commission failed to learn the importance of swift action in the face of burgeoning rule of law crises but has actively ignored similar systemic issues altogether in Lithuania, a country that has historically been an exemplary Member State. This article will analyse the status of the rule of law and judicial independence in Lithuania in light of the EU Commission’s first two Rule of Law Reports published in September 2020 and July 2021. These reports were designed to act as a preventative measure to protect the rule of law in each Member State through documenting and raising awareness for rule of law developments in the Union. Lithuania has largely slipped under the radar of constitutional democracy scholars; however, in the past two years, Lithuania has endured a series of attacks on judicial independence and suffered an attempted siege of its national broadcaster. There has been an intense deadlock recently over the election of Constitutional Court justices, which has raised concerns over the executive’s persistent attempts to politicise Lithuania’s highest court. Worryingly the recent Rule of Law Reports, published by the EU Commission, fail to reflect the severity of these recent developments. The reports’ silence on these issues leads this article to conclude that the EU Commission is turning a blind eye to Lithuania’s precarious rule of law situation by failing to truthfully document significant negative developments around the rule of law. By doing so, the Commission not only exacerbates rule of law issues domestically but also undermines the fight against rule of law backsliding in the Union.

To Live and to Learn: The EU’s Failure to Recognise Rule of Law Deficiencies in Lithuania

This article deals with the ongoing rule of law crisis facing the European Union (EU). It aims to contribute to the growing body of literature concerning EU states facing rule of law decline and the EU’s response to this crisis. This article will analyze the status of the rule of law and judicial independence in Lithuania in light of the EU Commission’s first Rule of Law Report published in September 2020. Lithuania has so far slipped under the radar of constitutional democracy scholars who have been researching European rule of law backsliding, mainly focusing on the crisis in Poland and Hungary. However, in the past two years, Lithuania has endured a series of attacks on judicial independence and suffered an attempted siege of its national broadcaster. There has been an intense deadlock recently over the election of Constitutional Court justices, which has raised concerns over the executive’s persistent attempts to politicize Lithuania’s highest court. Worryingly the recent Rule of Law Reports, published by the EU Commission, fails to reflect the severity of these recent developments. The Commission’s inaction leads this article to conclude that the EU Commission is turning a blind eye to Lithuania’s precarious rule of law situation. By doing so, it not only exacerbates rule of law issues domestically, but also undermines the fight against rule of law backsliding in the Union.

The Importance of Full Constitutional Complaint as the Eff ective Mechanism for Restoring Human Rights in Constitutional Justice

The report is related to pointing out the advantages of full constitutional complaint and its peculiarities and characteristics. The model of full constitutional complaint contributes to the principle of responsible governance and relevant authorities. Among other advantages, full constitutional complaint is the important instrument that contributes to make courts’ best practices come together and share the experience. Establishing of the full constitutional complaint will contribute in order to increase human rights sensitivity and human rights approach in general courts system while discussing and deciding individual court cases. Besides, the full individual constitutional complaint mechanism will contribute to provoking interest towards Constitutional Court justice.

Appointment of the Constitutional Court Justice: Some Issues

This article analyses important issues brought up in public regarding one of the constitutional institutions – formation of the Constitutional Court. At the outset, the article looks at the models of accessing the position of the Constitutional Court justice, their weaknesses and also responsibility of persons engaged in the appointment of justices. Challenges of parliamentary procedures are also discussed, especially considering that the platform e-Saeima was used as the voting platform to appoint the justice. The article also reflects a debate on whether a Constitutional Court justice can be appointed only once in a lifetime, keeping in mind the recent amendments to the Constitutional Court Law, including reappointment mechanism if the judge has had to leave the position before expiration of 10 years’ mandate. Finally, the article analyses the role and meaning of decisions made by a special institution – Judicial Council – when appointing the Constitutional Court justice.

Building Bridges between Catholicism and Socialism: Ernst-Wolfgang Böckenförde and the Social Democratic Party of Germany

AbstractThis article examines the ideological and political transformations that allowed dialogue between Catholics and socialists to bear fruit in the Federal Republic of Germany in the immediate post-war era. It focuses on the role played by Ernst-Wolfgang Böckenförde, the prominent Catholic intellectual, constitutional theorist, historian and future Constitutional Court justice.

Analisis Putusan Mahkamah Konstitusi No. 36/PUU-XV/2017 Tentang Hak Angket Dewan Perwakilan Rakyat Terhadap Komisi Pemberantasan Korupsi

The issues raised in this article are first, examining the opinion of the Constitutional Court justices in the Constitutional Court Decision No. 36 / PUU-XV / 2017 and second, analyzing the implications of the Constitutional Court Decision No. 36.PUU-XV / 2017 against the existence of the KPK. The research is a normative legal study with the data collection methods of document study and analyzed by using the descriptive-qualitative methods. The results of this study indicate that, First, there are three different opinions in the Constitutional Court Decision No. 36 / PUU-XV / 2017. The first opinion, the KPK is in the realm of executive power so that the DPR has the right to exercise the right of inquiry to the KPK. In addition, until now there are no other state institutions that can control the KPK so that the DPR can use its questionnaire rights to carry out its supervisory functions. The second opinion is that the KPK is an independent state institution outside the legislative, judicial and executive powers. And the third opinion states that the KPK is in the realm of executives who are independent. So that the Parliament can not use the right of inquiry to the KPK. Second, the implication for the existence of the KPK is that the KPK's relationship with political power, especially in the parliament, is increasingly not ideal. Though the KPK was formed as an independent state institution. The relationship between the KPK and political power will be ideal if the election of the KPK chairperson is appointed by its own members and is no longer elected through the DPR .

Social Perspectives; Legal Policy Post-Constitutional Court Decision No. 46/PUU-XIV/2016 Concerning Immoral Provision of Indonesia Criminal Code

This paper examines the analysis of Court Decision Number 46 / PUU-XIV / 2016 concerning the application to extend criminal offenses in the Criminal Code (KUHP) related to adultery (Article 284), rape (Article 285), and lewd acts (Article 292). In the ruling, the Constitutional Court rejected the request for all. This verdict ends with differences of opinion among Constitutional Justices. Four of the nine Constitutional Court Justices presented dissenting opinions. Decision No. 46 / PUU-XIV / 2016 is very worthy to be studied in depth, because in its decision, there is a conflict of judges based on different perspectives and methods in answering constitutional issues.

Constitutional Court: The Dilemma of Law and Politics

This article raises questions in the context of the tension between the activities of parliament and government on the one hand and constitutional courts on the other hand. As to this tension, it concludes that the manner and method of decision-making on the part of government or parliament differs fundamentally from the manner in which constitutional courts operate. The article further elaborates, in particular, on the acceptance of decisions rendered by the constitutional court, as well as on questions in the context of the election process of constitutional court justices.

헌법재판소법의 입법적 개선방안에 관한 연구

Since The Constitutional Court established on 1 September 1988, it has fulfilled its role as a guaranteed institution of the fundamental human right and a regulation instrument of the power faithfully. But as compared to the remarkable progress of the constitutional trial, the Constitutional Court Act is still far from perfect and has quite a few legal deficiencies. These legal deficiencies sometimes caused the legal controversy and the confusion in national affairs. Thus, it is necessary to seek legislative improvement in the constitutional justice system by supplementing the legal deficiencies of the constitutional trial and the Constitutional Court. The contents to be improved in the current Constitutional Court Act should be summarized as follows. First, it is necessary to establish a substantive provision concerning the term in office of the Chief Justice of the Constitutional Court and the acting Chief Justice in the case of its absence. Second, it is necessary to introduce the qualifications equivalent to the Supreme Court Justice concerning qualifications of the Constitutional Court Justice. Third, if a Constitutional Court Justice can not perform his duties due to serious mental and physical disabilities, a system that he or she can be ordered to retire needs to be introduced according to the case of Justice of the Supreme Court. Fourth, it is necessary to introduce a cost compensation system to compensate the parties for the expenses incurred by the parties in the Constitutional trial for the sake of the decision. Fifth, it is necessary to review the type of the Constitutional Court's decision that the Constitutional Court has presented through its decisions. Sixth, it is necessary to expand an injunction system to the procedureof the constitutional complaint. Finally, it appears that there is sufficient need to state the provisions of the retrial in the Constitutional Court Act.

Reconstruction of Ethics Supervision System Towards Constitutional Court Justice

Ethics supervision of constitutional justices is an important issue for the development of ethics supervision system in the Constitutional Court, because the supervision of constitutional justices is a means of maintaining the independence and impartiality of constitutional justices, which is in fact the main pillar of an independent judiciary. In its development, there has always been a debate about the ethics supervision of the constitutional justices, whether the justices should be overseen externally or internally. This is because, juridically, the law does not regulate it clearly. Based on the above background, the research issues drawn are: (1) What is the significance of ethics supervision toward constitutional justices ?; (2) What is the system of ethics supervision of constitutional justices according to Indonesia’s current positive law, (3) How to reconstruct the system of ethics supervision of constitutional justices more optimally in the future? Based on the result of the research entitled “Reconstruction of Ethics Supervision System toward Constitutional Justice”, the following conclusions are obtained: (1) Based on philosophical, juridical and empirical perspective, ethics supervision of constitutional justices has important meaning in order to maintain and uphold the honor, dignity, and the behavior of constitutional justices. (2) Based on the analysis of the evolution of the ethics supervision system, the result shows that the ethics supervision system toward constitutional justices which is always changing indicates that there is still no standard system as a guideline for the enforcement of alleged violation of ethics against the constitutional justices. Therefore, there is a need for normative reconstruction of the ethics supervision system toward constitutional justices through legislation. (3) The reconstruction of the ethics supervision system toward constitutional justices can be done through: a. Amendment to the 1945 Constitution by adding a new norm governing the provision on ethics supervision system toward constitutional justices, b. Amendment to the Constitutional Court Law.

THE STATE OF PARLIAMENTARY FREE SPEECH Democratic Alliance v Speaker of the National Assembly 2016 (3) SA 487 (CC)

The last two years have been challenging for the South African Parliament (comprising the National Assembly and the National Council of Provinces). Some of the issues experienced include: wide-ranging disruptions during the President’s 2015 State of the Nation Address; the forceful removal of Members of Parliament (members) from the parliamentary Chamber by the police; cell-phone signal jamming in the Chamber; a failure by the Assembly to fulfil its constitutional obligations in terms of sections 55(2) and 181(3) of the Constitution of the Republic of South Africa, 1996 by not holding the President accountable to the Public Protector’s findings in the Nkandla saga ; members ignoring the rulings of the Speaker and the Chairperson of the NCOP; a challenge to the legitimacy of Parliament’s broadcasting policy and rules (Primedia) and the use of various forms of “unparliamentary” language by members in Parliament (Chairperson of NCOP). Whilst confrontation and robust debate in Parliament are not uncommon and to be expected, incidents such as these are becoming more frequent and have required the repeated intervention of the Courts.The Constitutional Court judgment in Democratic Alliance v Speaker of the National Assembly raises important questions concerning the nature and scope of the parliamentary privilege in section 58(1)(b) of the Constitution. It also demonstrates the difficulty of maintaining a balance between the importance of upholding the guarantee of freedom of speech in Parliament, on the one hand, and the need to ensure internal order and discipline during parliamentary sittings, on the other. There have been a number of recent judgments concerning the internal functioning of Parliament. These judgments illustrate that the South African Constitution is a work in progress and that our constitutional jurisprudence is maturing. As recently observed by retired Constitutional Court Justice, Sandile Ngcobo, “This is not a bad thing … Our Constitution is still a young one and through constitutional adjudication it will generate constitutional rules and principles that will form the core of our constitutional law”. The purpose of this note is to explore the constitutional principles underlying parliamentary privilege, with specific reference to the decision in Democratic Alliance.

Pola Pelanggaran Pemilukada dan Perluasan Keadilan Substantif

The pattern of direct elections of regional head and the Constitutional Court practices in adjudicate disputes local elections have been developed rapidly. Some of violations color the elections of regional head. They were the mobilization and partiality of Civil Servants, abuse of office, facilities, and state budget by the incumbent candidate, and the practice of money politics. The systematic, structured as well as massive violations generally results reelected vote with a final decision or interlocutory preceded. More than that, various violations of further stages of the General Election was also assessed based on the principle of free and fair election so that the decision of the Court has eigh models based on similar characteristics.The paradigm of substantive justice made procedural rules does not open the opportunity for justice. It drives the role of the Constitutional Court put the final determinant of local democracy which is still colored by piracy and fraud. Constitutional Court justices are not only expand but also strengthen democracy that took place so as not limited to procedural democracy. With this, the examination is very extensive; the free encyclopedias assess weight and sanction violations. Paradigm has evolved to be followed by the ratio decidendi constancy previous decisions and anticipate the variety of sanctions violations by designing the right to justice itself.

Problematika Substantif Perppu Nomor 1 Tahun 2013 Tentang Mahkamah Konstitusi

Constitutionally, the issuance of Government Regulation in Lieu of Law is the subjective right of the President based on the state of exigencies, but its formation should alway fulfill good, proportional and prudent principles of lawmaking. Eventhough the objective of issuing the Government Regulation in Lieu of Law on Constitutional Court is to restore public trust and credibility of Constitutional Court Justices, the content of the regulation may not be contradictional with the 1945 Constitution of the Republic of Indonesia. In order that there is no distortion in the use of subjective right of the President in issuing the regulation, the House of Representatives must objectively scrutinize whether the regulation is reasonable to be promulgated as a law ar must be denied.

Justices ‘en Garde’: Ideological determinants of the dissolution of anti-establishment parties

Examining justice-level determinants of party dissolution decisions can reveal how high Courts may influence the public choice by constraining the representation of political ideologies. We argue that Constitutional Court justices strategically engage in politics through party dissolution cases, and justices ‘en garde’ act to guard the regime against anti-establishment ideologies. As a graveyard of political parties, Turkey is an appropriate case to study this claim. By introducing a unique dataset, we demonstrate that communist, religious and ethnic parties in Turkey with considerable public support are more likely to be dissolved by justices having an activist and pro-status quo ideological stance.

Judging Under Political Constraint: The Ecuadorean Case (2008-2015)

This paper offers the results of a systematical analysis of the politicization of the Ecuadorian Constitutional Court (CC) during the so-called “Citizen Revolution.” Based on empirical evidence, this paper shows the CC’s proclivity to rule in favor of political actors, the majority of whom have frequently supported presidential interests. A quantitative analysis is used to examine all 103 constitutional review cases (accion publica de inconstitucionalidad o control de constitucionalidad abstracto in Spanish) in the 2008-2015 period. The results reveal that laws are more likely to be struck down by CC justices if a policital actor claims unconstitutionality than when a non-political party claims unconstitutionality. Moreover, media coverage is also found to be a good predictor of judicial decision-making in CC cases. The findings suggest that Ecuadorean constitutional review can be politically biased, and that legislators may need to consider such bias when designing a review procedure.

Party, pope, and politics? The election of German Constitutional Court Justices in comparative perspective

The election of Constitutional Court Justices in Germany is guided by an unusual and complex normative system in which rules with the lowest degree of legal normativity often play the most important practical role. Indeed, the relevant constitutional norms are close to misguiding. Statutory norms are closer to real life, but still overshadowed by a longstanding, informal agreement between the major political parties on a system of party affiliation. The actual determination of individual candidates is widely influenced by a very limited number of high-ranking party members without any official calling (Section 2). Reform proposals for this much criticized system mostly concern a possible public hearing modeled on the US example, a change in the bodies charged with the election, and the voting procedure (Section 3). A closer analysis of the critique reveals, however, that it is largely unfounded. The influence of party affiliation simplifies and assures an ideological balance within the Court that is necessary for its proper neutral functioning (Section 4.1). The idea of a more transparent selection process with public hearings would most likely politicize and ideologize the selection process even more and, in the German environment, exclude a great number of good candidates from the process (Section 4.2). The delegation of the election to a parliamentary committee, to the exclusion of parliament itself, is a sound policy decision, albeit an unconstitutional one since it divests members of parliament of their right to vote. However, a simple parliamentary yea or nay vote at the end of an otherwise unchanged procedure could easily remedy this problem (Section 4.3). The entire evaluation of the election procedure hinges on the qualification of constitutional courts as more political or more legal bodies. While this article prefers the legal point of view with respect to the German Constitutional Court, such a determination can never be done in the abstract, but will differ from one constitutional court to another. The influence between empirical reality and the legal/political qualification of a given court is, however, a mutual one in which the prevailing—or changing—theoretical attitude may become a self-fulfilling prophesy (Section 5). The German system for the election of Constitutional Court Justices deserves full and continuing support.