Interpretation Of Constitutional Court Research Articles

Analisis Legal Standing dan Konsistensi Putusan Mahkamah Konstitusi dalam Pengujian Materiil UU Nomor 7 Tahun 2017 tentang Pemilihan Umum: Studi Kasus Putusan No.90/PUU-XXI/2023

This research reviews constitutional review at the Constitutional Court (MK), especially in Case No.90/PUU-XXI/2023. The focus is on the applicant's legal standing and the Constitutional Court's considerations in making decisions. Legal standing is a legal right or position that allows a party to file a lawsuit before a court. In the context of material review, the applicant's legal position is the main determinant of the legitimacy of judicial review. Normative legal methods are used in this research to systematically and in-depth analyze the legal framework governing legal standing and the Constitutional Court's interpretation of it in the context of the cases studied. This research discusses the requirements and criteria for legal standing which are regulated in both the law and MK regulations, as well as the MK's interpretation of them in this case. The results show a debate surrounding the consistency, independence, and integrity of the Constitutional Court, especially regarding the controversial decisions received. Criticism emerged regarding the Constitutional Court's approach in assessing legal standing, where there were allegations of inconsistencies, loose assessments, and potentially dubious conflicts of interest. Thus, this research provides in-depth insight into the constitutional review process and the challenges faced by the Constitutional Court in maintaining its authority as an independent and credible constitutional justice institution.

THE AMBIVALENCE OF REGIONAL ELECTION DISPUTE RESOLUTION IN INDONESIA: The Dynamics of the Constitutional Court's Interpretation of Dispute Resolution Designs on Regional Election Results

THE AMBIVALENCE OF REGIONAL ELECTION DISPUTE RESOLUTION IN INDONESIA: The Dynamics of the Constitutional Court's Interpretation of Dispute Resolution Designs on Regional Election Results

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.

COVID-19 Compulsory Vaccination of Healthcare Workers and the Italian Constitution.

On April 1, 2021, the Italian Government issued the Decree Law no. 44 establishing COVID-19 compulsory vaccination for healthcare workers. In covering the news, national and international commentators have foreshadowed controversy over its constitutional status. In fact, it seems sensible to wonder if mandatory vaccination is consistent with the right to medical self-determination in the Italian Constitution, and if vaccine mandates that exclusively apply to a specific part of the population can be squared with its Equality Principle. As it happens, both answers are in the affirmative. On the one hand, the Italian Constitution acknowledges medical self-determination, but it explicitly admits of public health coercive measures, as both the text of the Constitution and its original understanding make abundantly clear. On the other, as to the Equality Principle, the scientific literature has long attested to the unique benefits of vaccinating healthcare workers, which seem all the more appropriate amidst a pandemic. Moreover, the government's choice of moderate penalties for vaccine refusal and the temporary nature of the mandatory regime further agree with the Italian Constitutional Court's interpretation of the Equality Principle - the so-called "Reasonableness Criterion." The Decree Law - meanwhile become, with minor modifications, Law 76 of May 28 2021 - is thus expected to pass foreseeable judicial review. However, it would be beneficial if the Italian government more vocally advocated the constitutionality of its vaccination policies in a general effort to contrast vaccine hesitancy.

Menimbang Kedudukan Majelis Kehormatan Mahkamah Konstitusi Setelah Terbitnya Undang-Undang Nomor 7 Tahun 2020

This research elaborates the Constitutional Court interpretation within Decision No. 49/PUU-IX/2011 on judicial review of Law No. 8 of 2011 on amendments of Law No. 24 of 2003 on the Constitutional Court which its decision has granted mostly the petitioner’s petitions to change the Honorary Council of the Constitutional Court members composition. There are at least two examined issues in this study, they are: Firstly, does the addition of elements House of Representative, Government and the Supreme Court contradict Article 1 paragraph (3) and Article 24 paragraph (1) and (2) of the 1945 Constitution? And secondly, what is the implication of the decision to repeal Article 27A paragraph (2) letters C, D, and E for check and balance between three branches of state government (executive, legislative and judicial) in Indonesia? This research is normative legal research that uses a conceptual approach, also reviewed with case studies related to material research. The results show; Firstly, based on the study to Indonesian Constitutional Court Decision No. 49/PUU-IX/2011 which accepted most of the petitioner’s petitions on judicial review of Law No. 8 of 2011, the Constitutional Court stated that the addition of elements House of Representative, Government and the Supreme Court as members in the Honorary Council of the Constitutional Court then legislators have endangered the freedom of judicial power as regulated Article 1 paragraph (3) and Article 24 paragraph (1) and (2) the 1945 Constitution. Secondly, this decision has an impact on the members of the Honorary Council of the Constitutional Court which only consists of two elements, namely the constitutional court and the judicial commission. Therefore, the Constitutional Court Decision is considered successful in keeping the principle of check and balance between three branches of state government in the Indonesian constitutional state system.

Gender Analysis in Indonesia's Legislation Regarding Political Laws

This paper examines Indonesia's current legislation on politics, inter alia, Political Parties Law, Election Law, and Parliament Law, by using gender analysis. This paper considers how these laws ensure equitable access, participation, control, and benefits for men and women. Under the justice and gender equality approach, these laws are not optimal, especially under the control and benefit indicators. In this context, Political Parties Law contributes more to the indicator of access, while Electoral Law provides access and participation indicators. At the same time, Parliament Law is expected to contribute the most to the control and benefit indicators. However, it is regrettable that Parliament Law does not comply with these two indicators. Also, the Constitutional Court's interpretation was not followed in a series of legislative revisions of Parliament Law. Therefore, the gender approach in the legislative revision of these three laws should be encouraged to benefit from social life with more just and non-discriminatory. It should also provide equal opportunity for every citizen to gain access, participatory rights, control, and benefits in development. Hence, it is inevitable to the importance of the government commitment in gender mainstreaming in policy, harmonization, and synchronization of laws and regulations.
 KEYWORDS: gender justice and equality, political laws, women's representation.

Legal nature, role, meaning and grounds of Constitutional Court interpretation and doctrinal interpretation: their interconnection

That article studies the questions on the legal nature, significance and grounds of the Constitutional Court of Ukraine (hereinafter - CCU) and of doctrinal interpretation as well as their interconnection. The author analyzes the types of interpretation by the subject and notes that among the subjects of the official interpretation the Constitutional Court plays an important role, while for the informal interpretation the doctrinal interpretation is crucial. The paper defines the legal basis for exercising of the right of interpretation by the Constitutional Court of Ukraine, as a specific body, which is the latter at national level aimed at exercising exclusive special powers in protecting the rights and fundamental freedoms of human and citizen. It is stated that the CCU is a quasi-legislative body whose acts are binding and have the features of a source of law, the paradigm of its activity is determined, first of all, by the rule of law and then by the supremacy of the Constitution of Ukraine. The article also pays attention to the ratio between the legal positions and decisions of the CCU.
 The article analyzes the changes of the legislation on the activity of the CCU in the context of reducing the power to interpret laws, limiting it only to the right to interpret the Constitution of Ukraine.
 The author also emphasizes that as the subject of court interpretation may act a scientist who interprets a certain norm of law and works as a judge of the CCU. In this case, the interpretation is based on the results of a scientific research for a judge. Therefore, it is reasonable to say that judges of the Constitutional Court of Ukraine can to some extent be considered as “subjects of doctrinal interpretation”, especially taking into account the fact that these days there are many legal scientists, scientists with academic degrees and titles working at the posts of judges and performing scientific and judicial activity at the same time.
 The author also studies certain aspects of the doctrinal interpretation and the definition of its role and significance in the historical aspect on the example of different states. Questions on the ratio between doctrinal and court interpretation are also paid attention by the author.
 It is noted that, in general, in Ukraine scientific doctrine is not recognized as an official source of law, but at the same time plays an important role in the formation of legal consciousness, worldview and lawmaking. Therefore, it can be noted basing on the results of the analysis of legal norms and court practice, that many doctrinal legal positions over time are reflected both in the rulemaking process and in court decisions, turning into court legal provisions.

The Constitutional Court Interpretation of ‘Indigenous Belief’: An Islamic and 1945 Constitution Perspectives

This study aims to review the Republic of Indonesia's Constitutional Court Decision No. 97/PUU-XIV/2016. The Decision states that the provisions of Law No. 23 of 2006, Article 61(1) and (2) and Article 64(1) and (5) relating to the clearing of the column of religion in the family card and electronic identity card, are contrary to the Constitution. This study was designed to be qualitative for this purpose and uses normative methods of legal research. This study found that the decision of the Constitutional Court was not in line with Islamic Sharia and the Constitution of 1945 because it had an impact on the recognition of indigenous beliefs and their followers in order to have the same position in Indonesia as religions and their followers. This condition is damaging to society. According to the Islamic principle of sadd adz-dzarai, if it leads to something that is prohibited, something that is permitted must be closed or stopped. As respect to the Constitution of 1945, the provisions of Article 28E paragraph (1) and paragraph (2) of the Constitution of 1945, where religions and indigenous beliefs are classified as two separate and distinct entities, are more relevant constitutional norms to be referred to.

IA TAFSIRAN MAHKAMAH KONSTITUSI TERHADAP PEMUFAKATAN JAHAT OLEH KORUPTOR (STUDI PUTUSAN NOMOR 21/PUU-XIV/2016)

Hopes that the Constitutional Court (CC) is not acting as legislator (maker norm) was not easy to achieve. This is because in some cases the judicial examined, tried, and decided, the CC actually act as a norm-making body (one of them in the Case Number 21/PUU-XIV/2016). Thus, in terms of the concept of state power, the CC has a dual role as the holders of state power in the judiciary and the legislature. The problem of this study is the interpretation of the CC of the of conspiracy and the relationship between of conspiracy according to Article 88 of the Code of Penal (CP) in accordance with Article 15 of the Law on the Eradication of Corruption (LEC) before and after the enactment quo decision. CC interpretation against conspiracy is the right step to ensure legal certainty. However, the CC for an interpretation of action are included unlawful. Thus, in hearing and deciding the case a quo, the CC took a negative role, namely to uphold the law by breaking the law. The relationship between conspiracy under Article 88 of CP with according to Article 15 of LEC before the stipulated judgment a quo is not applied the principle of Lex Specialis Derogat Legi Generalis after adoption of a quo decision to do is to be the application of the principle of Lex Specialis Derogat Legi Generalis.

Politics, socio-economic issues and culture in constitutional adjudication

In dealing with the influence of political considerations on the Constitutional Court's interpretation and application of the Bill of Rights it appears to be useful to first consider the meaning of "politics" in the judicial context, then to determine the considerations when politics are alleged to require the recusal of a judge and lastly to describe the Constitutional Court's position on judges and politics.

The Italian Constitutional Court Case Law on Competition Law and Free Trade within the Framework of the European Union Legal System

Abstract This paper analyzes the path paved by the Italian Constitutional Court (ICC) in order to reconcile the series of its inconsistent judgments dealing with free trade, right to economic initiative, and freedom of competition. For this purpose, this article aims at investigating the role of the Italian Constitutional Court in the ‘constitutionalization’ of free trade and freedom of competition and at assessing the relationship between European Union policies and the Constitutional Court interpretation thereof. The last decade demonstrates, on the one hand, that the European Union law has influenced the domestic case law and, on the other hand, that, in turn, the European Union legal system has been ‘constitutionalized’ through the introduction of social and constitutional principles deriving from the Member States’ Constitutions.

Tafsir Putusan Mahkamah Konstitusi Tentang Sengketa Kepemilikan Pulau Berhala

The Decicion of Constitutional Court concerning Berhala Island not a dispute of property belonging under civil law. This dispute are constitutionality of the law concerning establishsing a new local government to the UUD 1945. Under Decicion of Constitutional Court in case No. 32/PUU-X/2012 and No. 62/PUU-X/2012 judge of Constitutional Court interpretation law about establishsing a new local government not based on legal constitutionality of that law to the UUD 1945. The interpretation of judge of Constitutional Court based on recognition and respective to high court decicion in case judicial review about Berhala Island.

The Constitutional Court in light of interpretive decisions in normative control proceedings

In a legal system based on the principle of the separation of powers, constitutional judicature is necessarily (given the nature of its social function) at the intersection of law and politics. Thus, constitutional judiciary is required to preserve political neutrality, particularly in relation to political (legislative and executive) authorities. The paper analyzes the principal issues pertaining to constitutional court interpretation, particularly in light of observing the principle of the separation of powers that the constitutional judiciary is bound to abide by and considering the role of the constitutional court as an institution standing at the intersection of law and politics. Every constitutional court is required to be politically neutral and independent from daily politics, which is the major factor in delineating not only the overall boundaries of the constitutional control of the normative framework but also in ensuring the independent and unbiased activity of the constitutional court in the process of interpreting the Constitution and the laws. The constitutional control function shall not be politicized, and it must be exercised only through legal reasoning. Consequently, in the process of constitutional interpretation, the Constitutional Court of Serbia has to develop and consistently pursue a doctrine of self-restraint, thus refraining from politically-driven assessment which is the exclusive duty of political authorities. A closer examination of the doctrine of self-restraint in recent constitutional practice shows that the most prominent elements of this doctrine are relatively new interpretative constructions and legal formulations of constitutional court, which reinforce not only the political neutrality of the constitutional judiciary but also its role as 'the negative legislator'. Yet, some of these constructions may be challenged because their excessive and often inadequate application has resulted in a kind of 'self-deprivation' in cases where the Constitutional Court may have had to abandon its primary constitutional mission and even 'tolerate' unconstitutional activity. In particular, this refers to the constructs such as 'a matter of legislative policy ' and a highly dubious term 'political acts' which are eo ipso excluded from constitutional control. On the other hand, when it comes to interpretative decisions, which rest on the dogmatic principle of statutory interpretation aimed at establishing the compliance of laws with the Constitution, the interpretation results may 'save' the legal act from being declared unconstitutional and invalid. In that case, the main problem is that the Constitutional Court has a slightly different role of shaping the positive law; thus, the practice of resorting (too frequently) to interpretative decisions does not lead to the optimal exercise of the Constitutional Court mission. Therefore, we can conclude that the constitutional jurisprudence (which includes only a few interpretative decisions) does not seem to entail a 'dangerous' divergence of the Constitutional Court from its constitutional mission, nor does it significantly affect the principal Constitutional Court activities.

La transparence des actes administratifs en Italie : Quelques aspects de droit comparé

For the first time, in Italy, Law 241 of August 7, 1990 regulates systematically the relationship between the citizen and the Public administration by afftrming the principles of participation and transparency. Furthermore this Law recogniz.es the citizens' right of access to administrative documents, thus enacting the so-called « new rights » present in the Constitutional Court's interpretation of Article 21 ofthe Italian Constitution on the freedom of information. However, the rule of access to administrative documents established by law n. 241/1990 has not actually been applied by administrative judges. Nor has the situation changea since the Council of Ministers of Presidential Decree n. 352 of June 27, 1992 approving administrative proceedings on the right of access. In practice, access to such documents remains linked to the discretion to recognize the inherent administrative power to permit their release. This subject should stimulate much interest in a comparative law study including both « common law » and « civil law » traditions where the role of the State in administration reflects different and quite specifie characteristics. The Italian model, therefore, is to be compared to the different experiences of England and of France. The French experience offers interesting comparisons in that comprehensive rules on this matter have been in force for some time and have resulted in an ample case law by the administrative judges and by the « Commission ». Furthermore, according to the French tradition, there is an established, practical relationship between the Administration and the citizens, unlike what has developed in Italy. It is within this framework that we see the important contribution that, over the years, the supra-national European approach has made in this area, especially in the decisions of the various organs of the European Community and in the decisions of the European Court on Human Rights. These decisions provide good starting point for new reflections on comparative administrative law.