Constitutional Law Perspective Research Articles

Politik Hukum Pengujian Peraturan Perundang-Undangan dalam Penyelenggaraan Negara

Legislation or commonly called the law is a political product. Politics is a field in the society which relate to public goals, and the law as one of the fields in society is always linked to the goals of society. Because of being associated with these objectives, the law has its own dynamics side. In its socio-political dynamics there is always a message that wants to be heard, known, understood, and then executed by the addressee, which is the organizer of state power, political power holders. In the perspective of constitutional law that message then becomes a goal in organizing the state and then organized into a political structure as the procedures in the administration of the state in order to reach the goal of the state. The meaning of a more democratic state administration and based on law as a goal in the amendment of the 1945 Constitution was to provide a constitutional basis, (i) equal relationship between state and society based on rights and obligations in reciprocal nature; (ii) the equal relationship between state institutions based on checks and balances system; (iii) strengthening the independence and impartiality of judicial authority to guard the running of the legal and constitutional system. Review of egal products in state administration through judicial mechanism aims to provide a guarantee for the implementation of these relationships and the running of the legal and constitutional system in accordance with the 1945 Constitution.

Corporate Social Responsibility: A Constitutional Perspective

Originally, the concept of CSR was come from business ethic values that impose corporation’s ethical responsibly to their social and natural environment. That development of ethical business was part of social consciousness on the degradation of environment as impact of corporation activities. This reality also raised the deep environmental ethic or deep ecology which challenge anthropocentrism economical development and urged ecocentrism development. In Indonesia, this phenomenon was marked by the enactment of Act 4/1982 on Environmental Management.The constitutional debate on CSR just began when the Indonesian Constitutional Court heard and decided the judicial review case of Act 40/2007 on Limited Liability Company which stipulate CSR mandatory law for corporation that have activity in natural resources areas. In its decision, Constitutional Court refused the petition. This means that the court affirmed that CSR mandatory law is not contrary to the Constitution. However, the legal argumentation of the court was not shifted from economical and environmental perspectives. The constitutional basis of the decision is Article 33 (4) concerning national economic principles and Article 33 (3) concerning state power on land, water, and natural resources. The Constitutional Court did not use the human rights concept as the source of CSR mandatory law.In constitutional law perspective, we can justify the CSR mandatory law from human rights guarantee on the constitution. CSR is one of the obligations to respect, to protect, to fulfill, and to promote human rights. Those obligations are not only bind over the government, but also corporation and all citizens. In that perspective, CSR should be mandatory law not only for the corporation which manage or correlate with natural resource, but for all corporations that operate in the middle of the society.

The Lawfulness of the Support Scheme of the German Renewable Energy Act (EEG) from the Perspective of German Constitutional Law and European Law

This article shows that the German Renewable Energy Act (EEG 2014) does not comply with both German constitutional law and European law. From the perspective of constitutional law, the EEG support scheme is no price regulation, as assumed by the Federal Court of Justice of Germany (Bundesgerichtshof), but a (hidden) tax. Furthermore, it lacks an amortisation and marketability clause. From the perspective of European law, the EEG surcharge is a levy within the meaning of Articles 30 and 110 of the Treaty on the Functioning of the European Union which cannot be justified under the European Treaties. Furthermore, the EEG support scheme conflicts with the European Emissions Trading System, as their impacts impair each other. Thus, the EEG support scheme is neither necessary nor appropriate to achieve the European targets regarding climate protection, but disproportionate instead.

Constitutional Issues of the Banking Union, between European Law and National Legal Orders

European history has always been characterized by a strong link between banks and States and, more generally, between banks and politics. National banking systems, therefore, have always been one of the forms of expression of sovereignty. This setting is seriously called into question by the Banking Union project, which has been recently implemented in Europe. Given the importance of the issue, this should be studied not only from the perspective of economics and regulatory studies, but also from the perspective of constitutional law. The paper is divided into eleven parts. The first part aims at reconstructing the historical and economic conditions that have led to design a project of Banking Union.The second part highlights the regulatory asymmetry between euro-area countries and non-euro-area countries. While, in fact, some institutions (such as the EBA) operate across the whole Europe, the Banking Union concerns only those countries that have adopted the euro as their currency.

Contour of Modern Republicanism and Indian Constitutional Structure

There is growing resentment of people against government which is visible from the ever growing number of litigation filed against government and government actions. This also indicates the mistrust of the people on the government's actions. It has caused due to lack of functional link between the ideology and functional policy of respective government. Articulation of cherished ideology and its circumferences will assist the functionaries to lay such functional policies in tune with the accepted policy of a State ( not of a Government). The political concept of 'Republic' is one of the one of the oldest political ideology, but its practice is eroding due to inconsistent understanding on it. To make 'Republicanism' as civic virtue, it is sine qua non to understand the same in existing Constitutional structure. People of India have declared to establish a Republic and Republicanism for themselves. This article is an endeavour towards that from Indian Constitutional law perspective. Concentration is on reading the modern perception of 'Republic' and linking the same with Indian Constitutional structure. In the present deliberation, the author candidly admits that he has refrained to examine the modern perception of 'Republic of India' from functional perspective of Indian Republic.

PEMBENTUKAN PEMERINTAHAN DARURAT REPUBLIK INDONESIA TAHUN 1948-1949 DALAM PERSPEKTIF FIQH SIYASAH DAN HUKUM TATA NEGARA

The formation of an emergency government of the Republic of Indonesia came from the Second Dutch Military Aggression on December 19, 1948 in Yogyakarta. In the aggression, President Sukarno and Vice President Mohammad Hatta taken prisoner by Dutch soldiers, causing a vacuum and paralysis of government. Before the Dutch prisoner, president has gave the a mandate to Sjafruddin prawiranegara, to form the Emergency Government, if the central government when it can no longer pass on its obligations. Sjafruddin prawiranegara located in Bukit Tinggi when the Dutch attack waged, not aware of the mandate, due to disruption of communication between Yogyakarta and Bukit Tinggi as a result of the Dutch attack. After knowing for sure captivity, then together civilian and military leaders in Central Sumatra, sjafruddin prawiranegara established the Emergency Government dated December 22, 1948. This study will discuss the PDRI according to the concept of the emergency state in perspective of fiqh siyasah and Constitutional Law. This study shows that the Emergency Government has played an important role in the framework of the struggle and the state administration during the Indonesian nation to maintain the independence of the Dutch Military Aggression II, especially in defending the existence of the Republic of Indonesia. Emergency Government struggle is inseparable from the process between diplomacy and the armed struggle, it is the process of the struggle waged to achieve the Emergency Government of the Republic of Indonesia sovereign. While legally, both from the perspective of the concept siyasah harbiyah in fiqh siyasah and Law of the State of Emergency in Constitutional Law, sjafruddin prawiranegara who served as Chairman of the Emergency Government between December 19, 1948 to the date of July 13, 1949 entitled referred to as the President of the Republic of Indonesia in emergencies.

Lembaga Perwakilan dan Checks and Balances dalam Kekuasaan Negara

The amendment of the 1945 Indonesian Constitution since 1998-2002 was resulting in some remain problems on Indonesian constitutional system, it is relating to each authority of representative institution which does not reflect the principle of people’s sovereingnty yet as it is adhered. This studi is aimed at giving solution from constitutional law perspective as an alternative thinking in order to resolve the principle issue according to legal imperative. Based on the review it can be stated that in order for representative institution refers to checks and balances system the power of people’s representative and regional representative boards need to be reformated into balancing construction by reamendmending the 1945 Constitution. House of Representative and Checks and Balances in A State’s Power

Mutación y ¿quiebra? constitucional de la Unión Europea

<p align="justify">La serie de crisis que sufre la Unión Europea desde finales de 2006 requieren un análisis sistemático desde una perspectiva constitucional. El presente trabajo tiene como principal objetivos el jurídico-dogmático de esclarecer el contenido sustantivo de la transformación constitucional de la Unión Europea a resultas de las medidas adoptadas para contener y eventualmente superar las citadas crisis; y el valorativo de determinar cuáles son las principales consecuencias que la mutación constitucional en marcha tiene sobre la integridad del ideal regulador del derecho constitucional de los Estados Miembros y de la Unión Europea, el Estado Social y Democrático de Derecho. En este artículo se sostiene que existen razones fundadas para concluir que la mutación constitucional pone en peligro la integridad del edificio constitucional europeo, o lo que es lo mismo, la transformación del derecho europeo en marcha conducirá a la quiebra del estado constitucional, salvo que se ponga remedio y fuerce al tren político, económico y social a cambiar de binario constitucional (a volver, en buena medida, al binario constitucional).
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 <p align="justify"><b>The manifold and overlapping crises of the European Union call for a systematic analysis from the perspective of constitutional law. In this article the reader is provided with a legal-dogmatic analysis of the punctual decisions and structural reforms that have been taken to contain and overcome the economic, financial, fiscal, macroeconomic and political crises; an elucidation of the resulting constitutional transformation of European Union law; and a normative assessment of the implications that the resulting constitutional mutation has, very especially with respect to the integrity of the regulatory ideal of the Social and Democratic Rechtsstaat. The main thesis of the article is that the ongoing constitutional mutation constitutes a direct threat to democratic constitutionalism in Europe. Either the constitutional changes are halted and reversed, or democratic politics is bound to become an empty shell.
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Bringing RightsMoreHome: Can a Home-grown UK Bill of Rights Lessen the Influence of the European Court of Human Rights?

This article focuses on the strategy to replace the UK Human Rights Act 1998 (HRA) with a home-grown Bill of Rights to lessen the influence of the European Court of Human Rights' case law. Without attempting to disregard the national-specific elements, the discussion of these questions is very relevant for all States confronted with the influence of Strasbourg. The tension between coherence, efficiency and autonomy is overarching. The article therefore approaches the issue not only from an outsider's perspective but also, where relevant, from a comparative constitutional law perspective. Both perspectives seem to be largely absent from the current (academic) debate. Firstly, this article analyzes the current relationship between the UK Supreme Court and the Strasbourg Court, which reveals that the judicial arguments in support of a mirror principle are not so much based on section 2(1) HRA, as they are, in the domestic courts' relationship with Strasbourg, on concerns about international obligations, hierarchy, effectiveness of the Strasbourg Court, coherence and efficiency. Internally, judicial arguments are founded on concerns about separation of powers, limited jurisdiction, and accustomedness to the precedent system. In the second part, this article focuses on the potential impact of a home-grown Bill of Rights on the current relationship between both courts; concluding that a home-grown Bill of Rights will most likely cause domestic courts to receive less latitude by Strasbourg and will not absolve domestic judges from the duty of taking into account the Strasbourg case law.

10.5937/zrpfns48-5806 = The concept, restriction and mechanisms of protection of right to life as a supreme human right

This piece of work covers the concept of right to life from the perspective of constitutional law as well as of some other legal disciplines, especially criminal law. Right to life is a crucial presumption of the existence of all the other rights, and as such bears a universal meaning. However, we encounter the violation of this very right, so it is essential to foresee the adequate mechanisms of jurisdiction so that this right does not downgrade to a proclamation only. Moreover, criminal law jurisdiction is the most efficient means of protection of human lives, hence the right to life, since liberty is the right to do anything in accordance with the principles of law. Not until people are restricted in their rights and liberty do they appreciate the worth of freedom. As for the systematization of this piece of work, the first part is dedicated to the history of right to life; the second part reviews the concept of right to life; the third deals with the restrictions of right to life enacted by the state using coercion and capital punishment respectively. The fourth, central part covers the mechanisms of protection of the right to life, and it states some negative, positive and procedural obligations of the state as well as the means of protection. In the conclusion, there is a short resume of the right to life and the problems we encounter today during the application of this right. All of this is intertwined with the practice of the European Court of Human Rights.

Los contratos con deberes de protección: a propósito de la vinculación entre el derecho constitucional y el derecho civil

El presente ensayo se refiere a los deberes de protección nacidos de contratos. El desarrollo doctrinal y jurisprudencial comparado de esta categoría es amplísimo. En el Perú, la doctrina nacional la ha estudiado apartir de casos concretos jurisprudenciales. El objetivo de este estudio es desarrollar la autonomía de estos deberes frente a las obligaciones principales y secundarias nacidas de contratos, con el fin de otorgarle una fundamentación no solo desde el derecho civil, sino también desde el derecho constitucional.

L’ingresso dei musei ecclesiastici nel novero dei beni culturali: alcune riflessioni nella prospettiva del diritto costituzionale

contributo sottoposto a valutazione SOMMARIO: 1. L’autonomia ex art. 33 della Costituzione quale carattere necessario dell’istituzione museale – 2. L’utilita sociale dei musei ecclesiastici – 3. Le fonti canonistiche – 4. L’introduzione della sussidiarieta orizzontale come traguardo culturale – 5. Volontariato culturale e micro-sussidiarieta: Abstract . The admission of ecclesiastic museums in cultural heritage: some reflection in constitutional law perspective Since museum reached its public function, as the people museum, management problems have emerged for the difficult compatibility between works of art and mass visits, for the lack of resources, for the relative difficulties of conservation and preservation, for the typical characteristics of museums, that are structured as private building and not to be opened to a various public. So we have to outline appropriate and productive management forms, to state coordinating techniques with other cultural or not cultural institution, to solve interpretation problems that stress the current management. On the other hand it is important to improve the quality of personnel and to increase the appropriate service structures to make an analysis of users needs and to simplify, with marketing and communication methods and instruments too, the access of collectivity to museums. With these perspectives, individual contribution and the help of little voluntary associations, which are promoted and supported, can give in the field of museums a micro-subsidiarity perspective, that can be even tested.

Cultural and Educational Rights of Minorities: A Human Right and Constitutional Law Perspective

Cultural and educational rights of the minorities are very important and essential which work as a tool for the uplifment of the minorities. Culture plays a vital role for the congenial development of children who belong to the community of minorities and that is why the preservation of culture, language and religion are important. Without education the progress of a community is not possible and the transformation of a society depends on education. All over the world it has been found that there is a huge gap between the minority and majority communities. For the sake of equality and a healthy relationship between the communities there need some special right of the minority. The world human right documents also recognized the cultural and educational rights of the minorities. According to English Language Dictionary, minority means: “The Minority of people or things is a number of them that form less than half of the large group, used especially when the number is much less than half of the large group.” An important report prepared for the UN Human Rights Commissions Sub-Commission on Prevention of Discrimination and the Protection of Minorities describe Minority as: “A group numerically inferior to do the rest of the population of a State, in a non-dominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show if not implicitly, a sense of solidarity directed towards preserving their culture, traditions, religion or language.”

The Constitutional Right to Lobby on the Two Sides of the Atlantic: Between Freedom and Democracys

The article reviews the main constitutional arguments for the protection of lobbying brought about in the United States and in the European Union, putting such arguments in a legal history context. After explaining the relevance and topicality of the study of lobbying from a constitutional law perspective (Part 1), attention is paid to the issue of properly defining lobbying (Part 2). The article then outlines the key features of the law of lobbying in the two legal systems considered (Part 3), and then links this analysis with some broader reflections on free speech and democracy in the two areas considered, in order to show how different is the way in which the two areas conceptualize a constitutional ‘right to lobby’ (Part 4). The final paragraph offers some concluding remarks, making a few policy recommendations (Part 5).

Old Weimar Meets New Political Economy: Democratic Representation in the Party State

One of the prominent questions surrounding Weimar Theory of the State was that of the significance and influence of the political parties within the state. From the perspective of constitutional law, parties were as undesirable as they were an “inescapable” fact of modern statehood. They appeared to be an absolutely necessary consequence of the emancipation of all classes and social strata: Legitimation of state rule was no longer conceivable merely as a natural rule from above; on the other hand, there was no longer a unified bourgeoisie, and it thus seemed impossible for the political whole to be represented by people who felt beholden exclusively to the common weal. The homogeneous “people” had become a heterogeneous “mass.” The parties seemed to be a necessity, on the one hand, for active citizens to articulate themselves in the political system and, on the other hand, for state unity not to be torn apart by the power of a plurality of interests leaning in many different directions. Parties could therefore be conceived of as aprerequisitefor state organisation: The idea of the “party state” was born. One important protagonist in the discussion on the status of parties within the state structure was the constitutional legal scholar Gerhard Leibholz (1901–1982). In Weimar times, he was the most prominent representative of party state theory (Parteienstaatslehre), and as someone who “had somehow fallen between the eras,” he also actively shaped the party state of the Bonn Republic for over twenty years (1951–1971), as a judge at the Federal Constitutional Court (Bundesverfassungsgericht), by significantly influencing legislation on parliamentary, party, and electoral law. His persona was therefore a particularly important bridging link between the Weimar Republic and the Federal Republic of Germany, and even today, his theses are highly topical: “Beyond all eras, Gerhard Leibholz stands for the great tradition of German constitutional theory.”

Blurring Boundaries: From the Danish Welfare State to the European Social Model?

This article builds on the results obtained in the so-called Blurring Boundaries project which was undertaken at the Law Department, Copenhagen Business School, in the period from 2007 to 2009. It looks at the sustainability of the Danish welfare state in an EU law context and on the integration of welfare functions into EU law both from an internal market law and a constitutional law perspective. The main problem areas covered by the Blurring Boundaries project were studied in sub-projects on: 1) Internal market law and welfare services; 2) Fundamental rights and non-discrimination law aspects; and 3) Services of general interest. In the Blurring Boundaries project, three aspects of the European Social Model have been particularly highlighted: the constitutionalisation of the European Social Model, its multi-level legal character, and the clash between market access justice at EU level and distributive justice at national level.

Regulating government (’s share): the fifty-percent rule of the federal constitutional court in Germany

Some numbers in the political sphere seem to be chosen rather arbitrarily. One example might be the rule set out by the Second Senate of the German Federal Constitutional Court in 1995 that the overall tax load on assets must be limited to 50% of the yield on those assets. This rule was understood by many as a general principle for taxation. The article first sketches the socio-political climate under which the rule originated: a rise of neo-liberal thought met with the inability of the political institutions to reform the German welfare state with its ever-growing expenses. The Constitutional Court’s intervention is interpreted as a reaction to this stagnation in politics. An analysis from the perspective of Constitutional Law, however, reveals that the 50% rule cannot be convincingly based on the German Basic Law, and instead must be seen as a political move of the Court. But this move did not follow an economic rationality, either; for an optimal government’s share can only be determined in relation to the economic performance of a country and not by fixing it generally at a maximum of 50% of GDP. The demise of the 50% rule already began four years later. In 2006, finally, the Senate moved away from the individual rights-based approach of 1995 to a more general assessment, taking also into account an increasingly globalized tax competition. The reason for this clear-cut change in the Court’s jurisprudence can be found in a change of the socio-political and institutional parameters, thus witnessing to the effect of the political climate on court decisions. The analysis also shows that the rule was created and abandoned only on the basis of an “introverted” legal discussion, economic arguments hardly playing any role in the process. The new line of the Senate, however, might guarantee for a better integration of economic science into tax policy by exchanging fixed limits for a “discursive” model, demanding from the tax legislator better reasons for higher taxes.

Blurring Boundaries: From the Danish Welfare State to the European Social Model?

Abstract: This paper builds on the results obtained in the so-called Blurring Boundaries project which was undertaken at the Law Department, Copenhagen Business School, in the period from 2007 to 2009. It looks at the sustainability of the Danish welfare state in an EU law context and on the integration of welfare functions into EU law both from an internal market law and a constitutional law perspective. The main problem areas covered by the Blurring Boundaries project were studied in sub-projects on: 1) Internal market law and welfare services, 2) Fundamental rights and non-discrimination law aspects, and 3) Services of general interest. In the Blurring Boundaries project, three aspects of the European Social Model have been particularly highlighted: • the constitutionalisation of the European Social Model, • its multi-level legal character, and • the clash between market access justice at EU level and distributive justice at national level.

Review of Right to Refuse Treatment, Right to Die and Death with Dignity : A Constitutional Law Perspective

Review of Right to Refuse Treatment, Right to Die and Death with Dignity : A Constitutional Law Perspective

Recht auf Selbstbestimmung versus Pflicht zur Gesundheit

"Individual responsibility" and the abidance by any "health-related obligations" are key words of the present political and legal German healthcare debate. In the process of adjusting the German welfare state by focussing the ideal allocation of common health resources patients who do not meet their "health-related obligations" are thus expected to accept cutbacks in medical care services. However, from the perspective of constitutional law there is no "health-related obligation" deriving from the German constitution - the right to self-determination guaranteed in Art. 2 Sect. 2 Sent. 1 of the German constitution has not been amended to impose a corresponding duty. Hence, health-related obligations may only refer to indirect ways of exercising individual responsibility, no more and no less. The present article highlights the few possibilities which the German constitution provides for the implementation of "health-related obligations" and reminds us of the conceptual aspects which have to be considered by the legislator.