Constitutional Judges Research Articles

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.

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.

Authority of Amicus Curiae in Constitutional proceedings : Bridging Society and the Constitutional Court

Amicus Curiae, or friends of the court, is an important instrument in constitutional proceedings in Indonesia even though it does not yet have a standard legal basis. This study discusses the authority of Amicus Curiae in providing additional information, enriching the judge's consideration, and supervising the proceedings of the Constitutional Court. The method used is the literature study approach, which is a research method whose series of research is related to the method of collecting library data, or research whose object of research is studied through various literature information, such as: books, journals, articles and documents. Amicus Curiae is filed in the form of a written document containing legal arguments and other relevant analysis. The Constitutional Court has the authority to reject Amicus Curiae that are judged irrelevant or filed with improper motives. On the other hand, a quality Amicus Curiae can have a positive influence on the decisions of the Constitutional Court and contribute to law enforcement and democracy in Indonesia. Amicus Curiae has not been clearly regulated in Indonesia, but in principle it is accepted under article 5 paragraph 1 of the Law on Judicial Power "Judges and constitutional judges are obliged to explore, follow and understand the legal values and sense of justice that live in society. Furthermore, the confession of the Amicus Curiae can be found in article 180 paragraph 1 of the Code of Criminal Procedure which states that "In the event that it is necessary to clear up the sitting of the matter arising in court, the presiding judge of the trial may request expert testimony and may also request to submit new material by the interested person.

RECONCILING CONSTITUTIONAL RULES AND INTERNATIONAL LAWS: A DOCTRINAL STUDY ON THE INNOVATIVE ROLE OF CONSTITUTIONAL RECONCILIATION IN IRAQ AND EGYPT

This research employs a doctrinal study methodology to investigate the conflict between constitutional rules and international rules,emphasizing the emerging jurisdiction of constitutional reconciliation. Through case studies in Iraq and Egypt, the study seeks to identify crucial criteria for addressing conflicts within the legal framework. A systematic analysis of legal principles, precedents, and existing literature provides a comprehensive understanding of the intricate dynamics involved in resolving conflicts between constitutional provisions and international rules. The research delves into nuanced conflicts arising in the absence of specified applicable laws in constitutional provisions, particularly where international treaties intersect with or deviate from domestic legislation. It aims to elucidate the mechanisms employed by domestic judges, utilizing constitutional reconciliation, when confronted with conflicts between provisions in domestic law and those in treaties. The central inquiry focuses on determining the prevailing legal framework—domestic law or international treaty—with constitutional reconciliation emerging as a novel jurisdiction to rectify such conflicts. In addressing the conflict between constitutional rules and international rules, the study aims to develop an effective resolution mechanism, underscoring the importance of constitutional reconciliation to harmonize international law with domestic legal frameworks. Grounded in a comprehensive understanding of international law regarding the authority of constitutional judges, the analytical method is complemented by the doctrinal study. By integrating the jurisdiction of constitutional reconciliation into the methodology and employing Iraq and Egypt as case studies, this research contributes to a nuanced comprehension of how constitutional judges can navigate and harmonize the interplay between domestic and international legal frameworks. This approach ensures the preservation of both sets of rules without compromising either, advancing our understanding of the complexities involved in addressing conflicts between constitutional and international rules through the innovative lens of constitutional reconciliation.

Analisis Yuridis Pelanggaran Etik pada Putusan Mahkamah Konstitusi Nomor 90/PUU-XXI/2023

Judges who function as executors and spearheads the justice system and liaise with the community, are expected to have high expertise in considering and making legal decisions about cases. A judge must abide by the applicable code of ethics while performing his duties. A judge will be punished based on a violation of his professional code of ethics. The latest case regarding violations of the code of ethics is the case of Chief Justice of the Constitutional Court Anwar Usman, who has been proven to have violated the judge's professional code of ethics related to Decision Number 90/PUU-XXI/2023. This study aims to determine how accountable a judge who violates the code of professional ethics and how the Honorary Panel of the Constitutional Court (MKMK) acts in handling cases where constitutional judges violate the code of ethics. Normative juridical methods were used in the study. This method refers to applicable laws and regulations, as well as community standards. This approach refers to applicable laws and regulations, which include principles, principles, and doctrines.

Political Legal Dissenting Opinion Ruling in the Dispute Cases on the Results of the 2024 Presidential General Election by Constitutional Judges

Political Legal Dissenting Opinion Ruling in the Dispute Cases on the Results of the 2024 Presidential General Election by Constitutional Judges

Aspek Hukum Tata Negara Terhadap Pengangkatan dan Pemberhentian Hakim Mahkamah Konstitusi

This research was motivated by the dismissal of Aswanto as a constitutional judge by the DPR, who legally and constitutionally still served as a constitutional judge. This research aims to find out aspects of constitutional law related to the appointment and dismissal of constitutional judges and to find out the implications of Constitutional Court Decision Number 96/PPU-XVIII/2020and the implications of Aswanto's dismissal as a constitutional judge. This research uses normative legal research. With a statutory approach, conceptual approach and case approach. The results of this research are that constitutional judges are proposed by the President, the House of Representatives and the Supreme Court with a mechanism regulated separately by the institution that nominates constitutional judges while not violating the provisions of the Law and in its implementation it must be open with the principles of transparency, participatory, objective and accountable. The implications of the Constitutional Court Decision Number 96/PPU-XVIII/2020 provide legal certainty regarding the tenure of incumbent constitutional judges and maintain the independence and impartiality of constitutional judges. The DPR's action to dismiss Aswanto constitutes a legal vacuum (rechstvacuum) because there are no regulations governing the DPR's authority to dismiss constitutional judges. The legal implications that occurred in the dismissal of Judge Aswanto by the DPR included legal uncertainty, inconsistency between the DPR and the President in implementing statutory regulations, problems with the independence of constitutional judges, and leading to the invalidity of the Presidential Decree.

Juridical Analysis of the Decision of the Panel of Constitutional Judges No. 90/PUU-XXI/2023

Juridical Analysis of the Decision of the Panel of Constitutional Judges No. 90/PUU-XXI/2023

Peran Majelis Kehormatan Mahkamah Konstitusi Dalam Penegakan Undang Undang Dasar Dan Penyelesaian Pelanggaran Kode Etik Ketua Mahkamah Konstitusi

The Ministry of Constitution have a vision on enforcing the Constitution in order to actualize the country of democracy, as well as the ambitions of our state law that is; to create a dignified life of the people and the nation. The purpose of the said vision is so that it can serve as a guideline, to exercise responsible judicial power in accordance with the mandate of the constitution, and independently for the Constitutional Court. The role of the Honorary Council of the Constitutional Court is to maintain and supervise the behavior of the Constitutional Court using descriptive research methods that are quantitative or non-quantitative. directly by conducting a literature review taken from search and normative results. The Honorary Council of the Constitutional Court is an institution that plays a role in monitoring and examining the actions of judges in the constitutional court which are suspected of violating the constitution. The authority of the Honorary Council according is to examine and make decisions on reports and information that the respondent judge is suspected of committing serious violations. The decision of the Honorary Council of the Constitutional Court as a means of enforcing the code, ethics and behavior of Constitutional judges is final and binding. Role of the Law The Constitution by the Constitutional Court regarding Cases of Violations of the Code of Ethics is the legal basis and source of law for making rules as code and ethical guidelines in carrying out the judicial duties of the Constitutional Court, Honorary Council. The Constitutional Court is the body responsible for guaranteeing and implementing the basic principles of the

PERLINDUNGAN HUKUM MELALUI PRANATA SURAT TUMBAGA HOLING DALAM MASYARAKAT BATAK ANGKOLA

This research analyses how the state protects the existence of surat tumbaga holing institutions as a costitutional right of the Angkola Batak community. This research is a normative legal research that is normative empirical in nature which is legal research to find legal rules in the principle of surat tumbaga holing in accordance with the principles of the Indonesian legal system. Primary data used are legal materials from the library and laws and regulations related to legal protection, social structure and local wisdom. To support this data, secondary data is added from the behaviour and values that live in the Angkola Batak community as a living legal norm. The theory used as an analysis knife in this research is Eugen Erlich's legal sociology, where Erlich sees positive law on the one hand and the law that lives in society on the other. Erlich sees that positive law will be effective if it is in line with and incorporates the values and laws that live in society. The results show that the tumbaga holing letter also has a role in resolving problems or criminal acts that occur, such as adultery, domestic violence, verbal insults, defamation or slander, as well as other criminal acts such as theft that can disrupt public welfare. In addition, the sanctions given as punishment to perpetrators involve actions such as being expelled from their customary community, paying a fine to the victim, apologising to the victim or their family in the presence of customary elders, as well as being obliged to cover all food costs incurred during the settlement of the crime. This reality is guaranteed by the state through Article 18 B paragraph (2) which ensures that the state protects, respects and recognises customary law communities and their traditional rights if they are still alive, in accordance with the principles of the Unitary State of the Republic of Indonesia and implemented through legislation. While juridically, it is determined that judges and constitutional judges as law enforcers are obliged to always follow the development of legal values and community justice in adjudicating and deciding cases before them as contained in the judicial power law.

Problematika Sistem Presidential Threshold Ditinjau dari Maqāṣid al-Syarī’ah

The presidential threshold is a threshold requirement for a political party or a coalition of political parties supporting a presidential and vice-presidential candidate pair using the percentage of the DPR seat acquisition or the national valid vote acquisition in the DPR general election. The presence of this presidential threshold is a barrier to the right to equal opportunity in government. This research aims to evaluate the various rights that have been violated by the presidential threshold policy from the perspective of human rights and maqashid sharia as a new view of the efforts to reform a just law. This research includes normative research with statutory and legal policy approaches. The results and discussion of this research are that the general election law related to the presidential threshold has been tested by the Constitutional Court. However, the Court always rejects the application because it is of the opinion that the presidential threshold is an open authority of the legislator based on the delegation of Article 6A Paragraph (5) of the 1945 Constitution. The rejection resulted in disappointment for the Indonesian people because it was considered to limit the right to become a leader. In the perspective of Maqāṣid syarī'ah, the presidential threshold policy has also violated hifdzu 'aql. Therefore, in the future, fair legal reform efforts must be realized, namely by amending Article 6A Paragraph (2) related to presidential requirements to clearly regulate and close the loopholes of interpretation by the legislators and moral development of constitutional judges so that they really fight for the rights of citizens with a further view of the constitution.

Violation of the Code of Ethics for Constitutional Judges in the Constitutional Court's Decision on Requirements for Presidential and Vice Presidential Candidates

As a country based on legal principles, Indonesia has a responsibility to respect and prioritize the principles of the rule of law, including independence and the absence of partiality in the judicial system. The level of success in implementing this principle can be measured by the extent to which the judiciary is independent in carrying it out to realize justice based on the law. However, the power of the Constitutional Court (MK) cannot be avoided from criticism and evaluation. For example, a Constitutional Court decision attracted public attention regarding the requirements for presidential and vice presidential candidates. Therefore, this article discusses the impact of the controversy that emerged after the decision of the Constitutional Court (MK) in Case Number 90/PUU-XXI/2023 on January 4 2023. This decision, which includes the cancellation of part of Law Number 7 of 2017, has raised various criticisms and doubts about the independence of the Constitutional Court. By focusing on the role of Chief Justice of the Constitutional Court Anwar Usman in minority opinions, this article analyzes the examination carried out by the Honorary Council of Constitutional Court Judges (MKMK) regarding alleged ethical violations. The implications for the credibility of the Constitutional Court as a democratic oversight institution are a major concern in this context.

Menguji Kenegarawanan Hakim Konstitusi Melalui Putusan Mahkamah Konstitusi Nomor 90/PUU-XXI/2023

Constitutional Justice Saldi Isra's confusion in expressing a different opinion (dissenting opinion) regarding the ruling of the Constitutional Court Number 90/PUU-XXI/2023, opening up public space to question the material aspects of the decision. According to Saldi Isra, the substance of the petition in Case Number 90/PUU-XXI/2023 is simple and clearly visible.opened legal policyIn fact, it was taken over and used as a "political burden" for the Court to decide. The results of the research explain that first, the mechanism for filling the position of Constitutional Judge greatly determines the statesmanship qualifications of Constitutional Judges, the involvement of state institutions as institutions proposing Constitutional Judges. Second, to create Constitutional Judges who master the constitution and state administration and have integrity and personality that is beyond reproach and are fair, it is necessary to make changes to the mechanism for filling the positions of Constitutional Judges in order to create a mechanism that reflects the independence of their election.

Term of Office of Constitutional Judges and Its Implications for the Independence of Judicial Power

This paper analyzes the implications of the term of office of constitutional judges in relation to the principle of independence of judicial power. Constitutional justices have a five-year term of office and can only be re-elected for one further term. This provision has been tried to be corrected through a request for judicial review of the Constitutional Court (MK) Law, but there is no Constitutional Court decision stating that the term of office of constitutional judges is contrary to the 1945 Constitution of the Republic of Indonesia. Determining the term of office of constitutional judges has implications for the independence of judicial power. The existence of a second period or renewable term will open up opportunities for political influence in the appointment of constitutional judges for the second period, thereby reducing the independence of judicial power. The elimination of the second period as approved by the legislators has positive implications for the independence of judicial power, but needs to be accompanied by improvements to the selection and supervision mechanism for constitutional judges. The Third Amendment to the Constitutional Court Law also regulates the selection process, but only states the principles and leaves further regulations to each state institution.

Transformation of the Constitutional Justices Tenure After the Constitutional Court’s New Act

The periodization system in the constitutional judges’ position has the opportunity to undermine the judges’ independence. the opportunity to be re-elected as an opening for political transactions between constitutional judges with the proposing institution. The enactment of Act No. 7/2020 is a new era for the system used in the constitutional judges’ term. The periodization of the Constitutional Court judges’ term was replaced based on the age limit of 70 years. This research examines the design of Constitutional Court judges’ terms after the enactment Act No. 7/ 2020. This article is written based on normative legal research. This study concludes that the transformation of the Constitutional Court judges’ term into non-periodization aims to strengthen the independence of Constitutional judges from any intervention. At the same time as a fortress from external pressure and ensures that judges do not face conflicts of interest arising from the possibility of extending the term.

Kewenangan Dewan Perwakilan Rakyat dalam Penggantian Hakim Konstitusi yang Berasal Dari Usulannya dalam Masa Jabatan

The precedent of dismissal and replacement of Constitutional Court Judge Aswanto during his term of office by the proposing body (DPR) is the first time this has occurred in the history of filling the position of Constitutional Court Judge in Indonesia. Does the DPR unilaterally have the authority to dismiss or...recall against Constitutional Judges originating from their proposals during their term of office. The research results explain thatLThe proposing body can renominate or replace the constitutional judge from his proposal during his term of office if the constitutional judge from his proposal is dismissed during his term of office by the President first at the request of the Chairman of the Constitutional Court based on the reasons stated in the Law on the Constitutional Court. However, the proposing institutions (DPR, Supreme Court and President) cannot unilaterally withdraw or recall constitutional judges based on their proposals.

Analysis of the Legal Outputs of State Institutions: The Case of the Constitutional Court of the Republic of Indonesia

The Constitutional Court (MK) safeguards the constitution, specifically the 1945 Constitution of the Republic of Indonesia. The Constitutional Court issues a variety of legal documents, including decisions, decrees, rules, and rulings, as part of its responsibilities and jurisdiction. The ruling of the Constitutional Court carries paramount significance as a legal outcome. The ruling of the Constitutional Court is conclusive and obligatory, applying to both governmental bodies, individuals, and legal companies. The rulings made by the Constitutional Court have the power to nullify or modify laws, government regulations, presidential regulations, ministerial regulations, or regional rules that are in contradiction with the 1945 Constitution of the Republic of Indonesia. The decrees of the Constitutional Court can establish rules for the process of reviewing cases, the selection and appointment of constitutional judges, and other subjects concerning the responsibilities and powers of the Constitutional Court. Constitutional Court rules are legally enforceable items that typically serve as regulatory measures. The regulations of the Constitutional Court might govern issues pertaining to the administration and management of the Constitutional Court, as well as other concerns concerning the responsibilities and jurisdiction of the Constitutional Court. The decisions made by the MK can govern various aspects pertaining to cases under its jurisdiction, including the determination of court expenses, the appointment of temporary judges, and other relevant topics concerning the case. The legal outputs of the Constitutional Court play a crucial role in upholding the constitution, ensuring law enforcement, and safeguarding human rights in Indonesia.

Analysis of the Mechanism for Dismissal of Judges of the Constitutional Court by the House of Representatives of the Republic of Indonesia

The Constitutional Court Law has regulated mechanisms related to the dismissal of constitutional judges. However, in practice, Constitutional Court judges can be dismissed unilaterally by the House of Representatives. This is not based on existing legal provisions regarding the dismissal of Constitutional Court judges. The formulation of the problem in this study is to analyze the mechanism for dismissing judges of the Constitutional Court of the Republic of Indonesia by the House of Representatives and the juridical implications. This research aimed to find out and analyze the mechanism of dismissal of constitutional judges by the DPR RI and find out its juridical implications. The research method used is normative juridical research method. The results of this study are first, the mechanism for dismissing judge Aswanto carried out by the DPR that has violated the mechanism for dismissing judges contained in the Constitutional Court law. Therefore, the dismissal carried out by the DPR is contrary to the law. Second, the juridical implications, among others, will become a precedent for other proposing institutions to carry out the dismissal of Constitutional Court judges, reducing the independence of the Constitutional Court. The Honorary Council of the Constitutional Court cannot play a major role in the mechanism for dismissing MK judges.
 Keywords: mechanism, dismissal, constitutional judge, constitutional court

헌법상 ‘동물 보호’ 규정의 필요성

In traditional jurisprudence, animals were merely objects of ethics and rights. From this perspective, the idea that the state should restrict people's rights for the sake of “animal protection” was a difficult theory to embrace.
 However, as regulations for the protection of animals have emerged in various forms around the world, an increasing number of countries have directly stated “animal protection” in their constitutions in order to provide a constitutional basis for such regulations. Even if ‘animal protection’ is not directly stipulated in the constitution, ‘animal protection’ is often interpreted to be included in environmental regulations to provide a legal basis.
 There is a big difference between stipulating “animal protection” in the constitution and recognizing it as a matter of interpretation. While constitutional interpretation is done by constitutional judges, constitutional amendments must be initiated and approved by the president or the National Assembly, and put to a referendum to reflect the current values of the time.
 In addition, the interpretation of constitutional provisions can be changed at any time, putting the protection of legal interests in an unstable position. Yet, stipulating “animal protection” in constitutional provisions cannot be easily changed due to the nature of the unwritten constitution, thus ensuring legal stability.
 People's awareness of animal welfare is increasing day by day, and the number of regulations restricting people's rights to protect animals is increasing accordingly. In these changing times, ‘animal protection’ recognized only through the interpretation of the Constitution is bound to face certain limitations. Therefore, it is necessary to ensure legal stability for ‘animal protection’ by stipulating it in the Constitution and using it as a constitutional basis for limiting people's basic rights.

정당의 자유를 제한하는 전국정당요건의 위헌성

This paper reviews the Constitutional Court’s decision 2021Hun-Ka23 and others, ruled on September 26, 2023, concerning the constitutionality of party registration requirements. Among requirements according to the Political Parties Act, this paper focuses on the so-called national party requirement: The Act compels the establishment of five or more municipal parties for registering any political parties. This paper critically engages in the Constitutional Court’s main arguments of both sides on this.
 Regarding the national party requirement, the opinion by four constitutional judges was constitutional, while five judges were of the unconstitutional opinion; yet, it was decided to be constitutional because a quorum was not reached. This paper critically examined the main arguments of the ruling opinion and then examined the validity and limitations of the main arguments of the majority opinion which argued the provision was unconstitutional. In this decision, the Constitutional Court presented some useful arguments based on the unconstitutionality of the national party requirement, while the arguments for the constitutionality of the provision were insufficient. In this regard, the decision raises the prospect that the Constitutional Court will make a forward-looking decision on related issues in the future. Additionally, this paper concludes with a suggestion that to realize the people’s freedom of political parties and party democracy, it is not only a legislative task for the legislature but also a serious interpretive task for the Constitutional Court to remove the legacy of the authoritarian era that remains in the Political Parties Act.