Constitutional Judges Research Articles

Beyond US Models of Judicial Behavior: Choosing Constitutional Judges in Chile and Colombia

Beyond US Models of Judicial Behavior: Choosing Constitutional Judges in Chile and Colombia

The concept and types of court decisions in civil procedural law

The article analyses the current legislation of Ukraine and doctrinal approaches to the concept of court decisions. The features of court decisions are revealed. A critical analysis of the definition of the term “decision” is made and recommendations for improvement of current legislation are provided. The study indicates that today there is a rather illogical situation, since the Civil Procedure Code of Ukraine defines the term “judgment” in two ways: as a procedural document by which a civil case is resolved on the merits; and as a general concept for all acts of justice adopted by a court in civil proceedings. It is noted that in order to eliminate such terminological inaccuracies, it is necessary to amend the current legislation. The following types of court decisions are thoroughly analysed: decisions on recognition, decisions on award and transformative (constitutional) decisions. It is noted that award judgments are court decisions confirming the rights, obligations and legitimate interests of the parties, in which one party undertakes to perform certain actions in favour of the other or to refrain from performing them; recognition judgments are court decisions confirming the existence or absence of certain legal relations, circumstances or legal facts between the parties; constitutional judgments are court decisions aimed at creating new legal relations, changing or terminating existing legal relations. The following types of court decisions are analysed: supplementary decision, decision in absentia, full decision and abridged decision. The conclusion is made that studying and analysing the concept and types of court decisions is of great scientific and practical importance, since court decisions stabilise legal relations and ensure real, proper and timely protection of rights and interests protected by law.

Analysis Dissenting Opinion and Concurring Opinion in Decision MK No.90/PUU-XXI/2023 Perspective Siyasah Qadhaiyyah

In the Constitutional Court Decision NO. 90/PUU-XXI/2023, which discusses the age limit for presidential and vice-presidential candidates, there are several discrepancies in the trial process. This is due to two constitutional judges presenting different arguments but reaching the same conclusion (Concurring Opinion) and four constitutional judges expressing differing opinions (Dissenting Opinion). There is an anomaly where the two judges with Concurring Opinions should be more appropriately categorized under Dissenting Opinions. If we examine the reasoning of the two judges with Concurring Opinions, it can be assessed that their arguments lean more towards the Dissenting Opinion, but their opinions shifted to the part that granted the request. The problem formulation to be discussed includes, first, how to analyze the Dissenting Opinion and Concurring Opinion of the judges in the Constitutional Court Decision No. 90/PUU-XXI/2023, which reflects differing views among the judges regarding the substance of the case examined, and second, how to view and interpret the Constitutional Court Decision No. 90/PUU-XXI/2023 regarding the judges' opinions in the trial from the perspective of Siyasah Qadhaiyyah, such as the principles of public policy in Islam that are oriented towards the welfare of the community.

Neo-Elyian theory, therapeutic jurisprudence and the constitutional judgment

Abstract This paper seeks to understand modern comparative reflections on John Hart Ely’s work through Comparative Political Process Theory or Comparative Representation-Reinforcing Theory, and how such approaches can be augmented through the lens of therapeutic jurisprudence. It argues that the legitimacy of courts’ actions (or inactions) in such settings can be understood through their potential to strengthen democratic institutions rather than do them harm, acting as a re-set or recalibration of the democratic landscape. By buttressing representation-reinforcing approaches with therapeutic understandings, curial interventions designed to shift longstanding democratic impasses or blind spots are likely to carry much greater institutional legitimacy. By applying this lens to a series of case studies, the paper highlights the normative contribution that therapeutic jurisprudence can provide to representation-reinforcing action and to the design of such approaches.

Controversy Over the Land Price Tax Reduction and Exemption of the Construction Base for Free Public Access: Constitutional Court 112 Constitutional Judgment No. 19

Controversy Over the Land Price Tax Reduction and Exemption of the Construction Base for Free Public Access: Constitutional Court 112 Constitutional Judgment No. 19

The Relationship Between the Constitutional Judges’ Selection by the House of Representatives and The Position of Judges in Judicial Review Decisions

The two issues raised in this study are the selection mechanism for constitutional judges nominated by the House of Representative (DPR) and the correlation between the selection of constitutional judges nominated by the DPR and the position of the judge in the decision to review the law. This research analizes the position of the constitutional judges on 8 judicial review decision which correlated to the authority and interests of the DPR. Judges who are nominated through a highly transparent and participatory selection process or a transparent and participatory process may rule in favor of or against the interests of the DPR. However, judges who are nominated through a selection process that is not transparent and participatory will all make decisions in favor of the interests of the DPR. That finding show that the judge nominated through a highly transparent and participatory selection process tends to be more independent than the judge nominated through less transparent and participatory selection process.

Initiating Constitutional Morality: Political Intervention, Ethical Reinforcement, and Constitutional Court Decisions in Indonesia

Constitutional morality is essential for the branches of power (Parliament and Government) to ensure impartiality, political insularity, and institutional stability for the judicial power, especially the Constitutional Court and constitutional morality as a guide and benchmark for constitutional judges to form ethics and decisions that reflect the Constitution. This article seeks to answer crucial questions about how forms of intervention and ethical problems in the Constitutional Court do not reflect constitutional morality and how the idea of limiting intervention and strengthening the ethics and decisions of the Constitutional Court through constitutional morality. The author uses normative legal research methods with statutory, conceptual, comparative, and case approaches. The results of this study are in line with the hypothesis of the argumentation that the author builds, showing that the lack of application of constitutional morality by Parliament, Government, and Constitutional Court Judges has threatened the independence of the Constitutional Court, has damaged the judicial dignity of the Constitutional Court, and making the Constitutional Court a means of political insurance. Several cases have shown that parliamentary and government intervention in the Constitutional Court is inevitable. Likewise, ethical violations and decisions of the Constitutional Court that do not reflect the Constitution add to the complexity of the current problems of the Constitutional Court. For this reason, the author recommends that the elaboration of the concept of limiting intervention and strengthening the ethics and decisions of the Constitutional Court can be accomplished in several ways, including statutory provisions regarding the prohibition of conflicts of interest and the ethics of state administrators, the construction of ethical institutions/courts as external institutions in enforcing and supervising ethics, reconstructing the process of selecting and dismissing constitutional judges fairly and transparently by involving public oversight, and guaranteeing and legitimizing the Constitutional Court in exercising administrative and financial autonomy independently.

Constitutional Court Regression in Post- Democratic Transition: A Comparison of Court Packing in Hungary, Poland, and Indonesia

Over the past two decades, the constitutional court established in the post-democratic transition has begun to face regression. The Constitutional Courts in Hungary, Poland, and Indonesia have evidence, carried out intensively through court packing. This article investigates the regime’s undermining of the constitutional court against constitutional judges in selected countries. In addition, this article will also describe the regime’s motives and objectives in undermining the independence of the constitutional court. This study argues that regression of the constitutional court occurs through several patterns, such as increasing and decreasing the number of constitutional judges, politicizing the appointment and dismissal of constitutional judges, and rearranging the requirements and selection procedures of constitutional judges. The regime uses court packing to place judges who are loyal or have the same political preferences as the regime to provide control over their independence.

Axiological Insights into Unveiling Independent Constitutional Judge Decisionism

<p><em><span lang="IN">This study analyzes</span><span lang="IN">how axiological principles such as justice, utility, and justice influence judicial decisions and impact the credibility and effectiveness of the legal system. Critically analyzing case studies and theoretical perspectives examines the interplay between judicial independence and accountability. The article emphasizes the role of values in shaping laws, advocating for consistency and consideration of consequences in judicial decision-making. It argues that moral and ethical principles are central to judicial discretion, ensuring that decisions align with societal values and legal integrity. This nuanced analysis contributes to the discourse on how value-driven decision-making enhances the coherence and legitimacy of the legal system, offering insights into the balance between judicial autonomy and responsibility</span></em></p>

Constitutional justice and the realization of the key values of constitutionalism

Judges play a pivotal role in contemporary constitutionalism, interpreting both ordinary laws and the Constitution. Their role involves fully realizing the Constitution's intent and safeguarding it through judicial mechanisms. Judges must approach the Constitution as a living document, integrating its evolving dynamics into their jurisprudence. This requires employing a teleological approach, seeking the Constitution's objective intent as understood at the time of interpretation, independent of the framers' historical perspectives. Judges, particularly constitutional judges, must consider the Constitution's core value system—human dignity, freedom, and equality—and integrate these principles into their interpretations. The Constitution encompasses unwritten laws, and revealing these is essential to judicial interpretation. Conflicts between constitutional values should be resolved through the principle of practical concordance. Judges also serve an internationalization function, considering the influence of inter- and supranational law as envisioned by the Constitution. National fundamental rights should be interpreted in alignment with regional and universal human rights frameworks.

Right To Privacy in Digital Age: A Study with Indian Context

The right to privacy is a cornerstone of individual autonomy and personal dignity, increasingly significant in the digital age where personal data is both valuable and vulnerable. This paper examines the evolution of the right to privacy in India, from its limited recognition in early constitutional judgments such as M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of Uttar Pradesh (1964) to its explicit acknowledgment as a fundamental right in the landmark case of Justice K.S. Puttaswamy v. Union of India (2017). The study highlights how technological advancements and digitization have intensified privacy concerns, such as data breaches, mass surveillance, and social media accountability, exemplified by incidents like the Pegasus spyware controversy and Cambridge Analytica scandal. This paper evaluates India's legislative framework for privacy protection, including the Information Technology Act, 2000, the Personal Data Protection Bill, 2019, and the recently enacted Digital Personal Data Protection Act, 2023, while drawing comparisons with global standards like the European Union's General Data Protection Regulation (GDPR) and the United States' sectoral privacy laws. Judicial interventions, such as those addressing Aadhaar’s constitutionality and striking down Section 66A of the IT Act, have been pivotal in balancing individual rights and state interests. The study underscores the need for comprehensive privacy legislation, robust regulatory frameworks, and public awareness to address the complexities of privacy in the digital age. By fostering transparency, accountability, and proportionality in data collection and surveillance practices, India can safeguard its citizens' rights while ensuring national security and technological progress. The findings aim to contribute to ongoing policy discussions and the development of a balanced, inclusive digital ecosystem.

Legal Politics of Judicial Supervision Constitution

In order to preserve and uphold the honor, dignity, and the behavior of the judge is required to supervise the attitude of the constitutional judge to fit the code of ethics, so that each judge's ruling will be implemented in order to enforce the law and justice based on Pancasila and the Constitution 1945 asapermanent legal political for supervision of the constitutional judges . Meanwhile legal politics incidental that becomes a choice among others: a) Behavior of Constitutional Judges are supervised by the Board of Ethics established by the Constitutional Court, and for the reported judges or suspected violations of ethic codes of Constitutional Judges formed by Honorary Council of Constitutional Judges who were proposed by Ethics Council, with the task of implementing and serving as judicial ethic; and b) there is no judicial supervision against Constitutional Court's decision as well as supervision of a court decision which was in the Supreme Court through the mechanism of legal remedies ( ordinary and extraordinary).

Reformulation of Decision Execution and Honorary Council Position of Constitutional Court After Decision Number 604/G/2023/PTUN.JKT

Abstract: This research analyzes the strength of the Decision of the Honorary Council of the Constitutional Court Number 2/MKMK/L/11/2023 and its execution after Decision Number 604/2023/PTUN.JKT questioning the Appointment of Constitutional Judge Suhartoyo in the object of a state administrative dispute in the form of Constitutional Court Decree Number 17 of 2013. This type of research is a doctrinal research that examines literature sources and statutory studies. Furthermore, this paper uses a conceptual approach and comparative approach that combines the concept of legal certainty and comparisons of several countries in terms of seeing a broader prototype of Ethics Institute arrangements comprehensively. After conducting an analysis, it can be concluded that the Decision of the Honorary Council of the Constitutional Court Number 17 of 2013 which contains ethical sanctions for violations of Constitutional Judge Anwar Usman is constrained by legal uncertainty in its execution. This is because there is no mechanism for the dismissal of the Chief Justice of the Constitutional Court after the imposition of ethical sanctions and there is a potential dualism in the ethical enforcement system that can be convoluted. The uncertainty of the execution of the Constitutional Court Honor Council Decision which has the potential to be convoluted with the involvement of the State Administrative Court in adjudicating the Decision a quo should be a reflection to distinguish the authority of law enforcement and ethical enforcement and their scope. This can be encouraged by strengthening the status of the Honorary Council of the Constitutional Court in its position as a Supervisory body as well as the arrangement of the Supreme Advisory Council in the Armenian Constitution. Keywords: Honorary Council of the Constitutional Court, Decision ethics, execution

Pengangkatan Hakim Mahkamah Konstitusi (Studi Perbandingan Negara Indonesia dengan Negara Thailand)

The appointment of Constitutional Court Judges between one country and another certainly has similarities and differences. This is greatly influenced by the history, state system and political situation of a country. Therefore, a problem is formulated regarding the characteristics of the mechanism for appointing constitutional court judges between Indonesia and Thailand. This study aims to determine and analyze the differences in filling constitutional court judge positions between Indonesia and Thailand. The study uses a normative legal method using primary, secondary, and tertiary data because by using this method, this study can produce descriptive data obtained from written words related to the object of the writing. This study also uses a comparative method between Indonesia and Thailand. The results of this study indicate that there are significant differences regarding the mechanism for appointing constitutional judges. Indonesia was proposed by three state institutions with their respective procedures, then Thailand was proposed by the Judicial institution and a special committee was formed to select constitutional judges.

How to avoid constitutional court-packing in an era of democratic backsliding: Reflections on the appointment of constitutional judges

AbstractAny struggles in the nomination and appointment of constitutional justices and failed renewal of the composition of the constitutional court might corrupt the perception of the independence of the guardian of constitutionality. The recent wave of impropriate renewals of constitutional courts throughout Europe leads to substantial concern. There are numerous more or less serious examples, including the well-known cases of Poland and Hungary, but alongside with them Latvia, Lithuania, the Slovak Republic, etc. In an era of democratic back-sliding more significant in some countries and less in others, it leads to wondering whether the influence of politics in power could be the critical factor distorting the composition of constitutional courts and whether this can be seen as a new virus infecting new democracies. After analyzing the recent failures to appoint constitutional justices, caused essentially by malfunction due to political actors participating in the process, the paper argues that in the selection, nomination, and appointment of constitutional justices, ensuring the depoliticization of this procedure is not the best choice, because the participation of democratically elected institutions in the formation of the constitutional courts enhances their legitimacy and credibility. The former, entrusted with the power to adopt erga omnes decisions, desperately need this legitimation. Different political cultures and contrasts in states' constitutional orders suggest that there is hardly one recipe that fits all. However, some universal and fundamental criteria stemming from the principle of the rule of law intended to ensure the independence of constitutional justice could bind the discretion of political actors participating in the nomination and appointment of constitutional judges and contribute to preventing constitutional crises.

Upholding the independence of constitutional courts in the EU beyond illiberal tendencies. Towards further convergence?

This article explores the impact of the CJEU case law on the independence of constitutional courts in EU member states that have not experienced an illiberal shift, and whether it will lead to further convergence among EU members regarding their models of constitutional justice. While EU standards on judicial independence have justifiably emerged in a context of crisis, they have become autonomous standards of EU law, applicable to all EU member states. However, such standards may be at odds with the current legal frameworks and practices operating in some EU member states. This paper argues that the development of EU standards on judicial independence and impartiality may positively impact member states that do not experience a rule of law decline. On the one hand, they underline possible anomalies that may exist in the appointment procedures of national constitutional judges. On the other hand, this tension paves the way for a European dialogue on the definition of constitutional justice and the promotion of a rule of law culture.

Searching for an Optimal Model for the Renewal of the Constitutional Court to Avoid a Constitutional Crisis: Dream or Reality?*

The failed renewal of the Constitutional Court in Lithuania was not the first in Europe, and will not be the last. The appointment of constitutional judges, usually undertaken with the involvement of the political institutions, became a very sensitive issue closely linked to their independence. After a sequence of unsuccessful attempts to renew the composition of constitutional courts, some states fall into a deep democratic backsliding, while some take the initiative to reform the existing appointment procedure, seeking to prevent the politicisation of constitutional control institutions. A universal and standardised one-size-fits-all model does not exist, as each particular national context must be considered. However, certain lessons are to be learned and certain pitfalls to be avoided. Constitutional courts must correspond to the criteria of the tribunal established by law, as disclosed in international jurisprudence. For this purpose, the proper law is needed. This article analyses the advantages and shortcomings of some elements of the proposed and partly realised Slovak reform on the appointment of constitutional judges that Lithuania and other states could benefit from. This allows for the conclusion that the explicit criterion of professional reputation might prevent arbitrary nominations and ensure that the best judge for the court and the society would be appointed. Contrary to most convictions, a larger majority in the Parliament is not necessary to keep this procedure in line with the principle of the rule of law. The only requirement is that the law must be clear, unambiguous and provide for the steps to be taken if the rotation fails.

Studi Putusan Mahkamah Konstitusi Nomor 114/PUU-XX/2022 Terhadap Eksistensi Sistem Proporsional Terbuka Sebagai Identitas Demokrasi Di Indonesia

This research was carried out in order to conduct an assessment of the Constitutional Court decision number 114/PUU-XX/2022 regarding the existence of an open proportional system as the identity of democracy in Indonesia. As is known, the decision rejected the review of several articles in the law relating to the open proportional system ( Law Number 7 of 2017 concerning General Elections) so the implication is that the open proportional system is still used as a mechanism for the general election system in Indonesia. As well as looking from another perspective regarding the advantages and disadvantages of the proportional system itself, the history of the application of open and closed proportional systems in Indonesia in the implementation of general elections, why the open proportional system was stated by constitutional judges as the ideal system to be implemented in Indonesia, and seeing how consistent the judges are constitution in deciding cases related to the open proportional system by comparing several constitutional court decisions related to the open proportional system. The author uses a doctrinal (normative juridical) approach. Research carries out analysis and research based on expert opinions and related theories in conducting discussions. Thus creating a correlation which thus sees the conclusion drawn by the constitutional judges that the open proportional system is the ideal system to be applied in general elections in Indonesia and that the existence of the open proportional system as a system in general elections in Indonesia is increasingly strengthened.

MEKANISME PEMBERHENTIAN HAKIM MAHKAMAH KONSTITUSI SEBELUM HABIS MASA JABATANNYA

This research uas used normative jusdical about Constitutional Court Judges to be respectfully dismissed according to Law No. 7 of 2020 concerning the Constitutional Court and what is the legal meaning of Constitutional Court Decisions which are Final and Binding. The results of research on the dismissal of constitutional judges in Law 24/2003 as amended into Law Number 7 of 2020 concerning the Constitutional Court Become a Law and in more detail regulated in Constitutional Court Regulation Number 4 of 2012 concerning rocedures for Dismissing Constitutional Judges ("PMK 4 /2012”). Constitutional judges are honorably dismissed for the following reasons: death, resignation at their own request submitted to the Chief Justice of the Constitutional Court, being 70 (seventy) years old; removed; or, hysical or mental illness continuously for 3 (three) months so that he cannot carry out his duties as proven by a doctor's certificate. The decision of the Constitutional Court, which is final and binding, contains 4 (four) legal meanings, namely: First, to create legal certainty as soon as possible for the parties to the dispute. Second, the existence of the Constitutional Court as a Constitutional Court. Third, it is meaningful as a form of social control carried out by the Court. Fourth, as the sole guardian and interpreter of the constitution.

Analysis of Constitutional Court Decision No. 16/PUU-XVIII/2020 Regarding the Honorary Council's Approval of Summoning a Notary in the Examination of Criminal Cases

In writing this journal the author discusses legal issues regarding the Analysis of the Constitutional Court Decision Number 16/PUU-XVIII/2020 concerning the Approval of the Honorary Notary Council for Summoning Notaries in the Examination of Criminal Cases. The Constitutional Court (MK) stated that it did not accept and rejected the judicial review of Article 66 paragraph (1) of Law Number 2 of 2014 concerning Amendments to Law Number 30 of 2004 concerning Notary Positions regarding the examination of Notaries in the judicial process with the approval of the Notary Honorary Council ( MKN). The Petitioners argue that the phrase with the approval of the Notary Honorary Council in Article 66 of the Law on the Position of Notaries places the Notary Honorary Council as having absolute and final authority to approve or disapprove a notary's summons to attend a case examination. This means that investigators, public prosecutors and judges cannot take further legal action if the Notary Honorary Council does not give their approval. With the Constitutional Court's decision issued by the Constitutional Judge regarding Article 66 paragraph (1) of the Notary Law, a problem arises regarding the basis of the judge's consideration of the Constitutional Court's decision regarding the Honorary Council's approval of the summons of a Notary in the examination of criminal cases. The approval of the Notary Honorary Council in granting permission to the parties to take or notarize and examine the Notary remains valid. The Constitutional Court (MK) stated that it did not accept and rejected the material review requested by the Indonesian Prosecutors Association.