Constitutional Enforcement Research Articles

Constitutional Enforcement and Justice in the Determination of Political Parties (Parpol) as Participants in the 2024 Indonesian Elections

Constitutional Enforcement and Justice in the Determination of Political Parties (Parpol) as Participants in the 2024 Indonesian Elections

Establishment of Electoral Court in Indonesia: Problems and Future Challenges

The purpose of this study is to determine the urgency of the establishment of a special court in resolving disputes over the results of the regional elections in Indonesia, because there will be simultaneous regional elections in 2024, and on the other hand the Constitutional Court (MK) is no longer authorized to resolve disputes over the results of the elections. This study uses a normative legal research method, with a statutory approach and the data used are secondary data. Based on the discussion, it was found that the special court which has the authority to resolve disputes over the results of the regional elections is very urgent to be established or determined, this is in accordance with the mandate of Law Number 10 of 2016 and as a follow-up to the decision of the Constitutional Court No. 97/PUU-XI/2013. Other reasons are: (a) The mandate of the law is limitative, (b) The nature of the Constitutional Court's duties as a constitutional enforcement agency (Court of law) and not a concrete case (Court of Justice), (c) The nature of the decision without proper appeal contrary to the basic principles of the electoral law system, (d) A settlement approach with a quantitative paradigm that is difficult to realize a sense of justice, (e) A separate judicial system makes the legal system for regional elections uncertain and difficult to achieve justice, certainty, and benefit. In addition, there is an urgent need because the simultaneous national elections are planned to be held in November 2024. This special court can be newly formed, its position can be under the Supreme Court (MA) or stand-alone autonomously outside the Supreme Court or empower existing institutions, especially institutions whose duties are related to elections by giving the authority to settle disputes over the results of the elections.

The Mix of Latin American Populist Constitutionalism

Abstract In this article, we study Latin American populist constitutions and their uses, seeking to analytically understand whether populist constitutionalism is, indeed, a thing. We posit that Latin American populist constitutionalism is a particular form of mixed constitutionalism in three senses: first, as a specific combination of substantive traits that includes both empowering and (some) constraining devices; second, as a peculiar politics of constitutional change that incorporates popular mobilization against pre-existing institutions as a key trait; and third, as a particular practice of constitutional enforcement that involves weak and selective implementation, often through institutional capture. By considering not only the texts of constitutions but also the ways in which they are changed and implemented, we hope to complement legal perspectives of mixed constitutions with a sociopolitical analysis of practices and contexts. By capturing the distinctive contribution of Latin American populism to the discussion of mixed constitutions, we seek to challenge both legal conceptions of constitutionalism that reduce it to negative or constraining features, and political conceptions of populism that simply equate it to authoritarian rule.

The Reception of Structured Proportionality in Australian Constitutional Law

A majority of the High Court has incorporated a test of structured proportionality into its implied freedom of political communication case law. Structured proportionality developed in the context of constitutional rights adjudication and requires courts to engage in substantive, values-based reasoning. The Australian Constitution does not contain a Bill of Rights and the High Court is known for its commitment to legalism and textualism. Against this background, one might think that the High Court would interpret the elements of structured proportionality so that they assume a highly distinctive form in Australian constitutional law. However, a close reading of recent implied freedom of political communication case law demonstrates that generally this is not the case. Admittedly, the High Court’s approach to the necessity and balancing stages departs from the case law of the Federal German Constitutional Court. However, once a broader comparative perspective is adopted, it becomes apparent that the High Court’s approach is not unusual, especially for courts that are new to applying structured proportionality. By adopting structured proportionality, the High Court may have aligned the implied freedom of political communication with a global model of constitutional rights enforcement. The Australian constitutional context may also be less distinctive than is sometimes supposed.

Retirement of a highest official of constituent entity of the Russian Federation due to loss of President’s confidence: constitutional issues

The subject. The article is devoted to the retirement of a highest official of a constituent entity of the Russian Federation in 2020 due to the loss of confidence of the President of the Russian Federation. Special attention is paid to the grounds for loss of such confidence, legal and social nature of confidence and different aspects of restriction of electoral rights for citizens. The purpose of the paper is to demonstrate that the retirement of a highest official in constituent entity of the Russian Federation vindicates electoral rights of citizens and decreases a level of confidence to public power of government and law. Moreover, the aim of this article is to prove that practice of the retirement of a highest official in constituent entity of the Russian Federation not always meet legal standards of negative constitutional legal responsibility. The methodology of the study includes general scientific methods (analysis, synthesis, description) and logical interpretation of Russian legal acts. Social definitions such as confidence and post-truth were analyzed by methods of philosophy and sociology. The main results and scope of their application. The author describes retirement of a highest official in a subject of the Russian Federation as a measure of constitutional responsibility and constitutional legal coercion in scope of practice in 2020. The author realizes, that President's decrees do not consist legal and appropriate basis for such retirement of a highest official in a subject of the Russian Federation, that is why this measure due to such practice cannot be qualified as negative constitutional legal responsibility. The author suggests ways to improve the mechanisms for applying measures of constitutional coercion in cases of retirement of a highest official in a subject of the Russian Federation due to the loss of confidence of the President of the Russian Federation for prevention of public power abusing, such as: 1) establishing in the federal law formally defined constitutional violations, that threaten the foundations of the constitutional system, morality, health, rights and lawful interests of other persons, ensuring defense and security of the state, the presence/absence of which is determined in the manner of a "preliminary" trial by the courts; 2) introduce measures of constitutional legal prevention or restraint against the highest official in a subject of the Russian Federation; 3) in the decrees of the President of the Russian Federation provide specific grounds for the loss of trust, established by the court. In addition to this, the author suggests to change federal law regulation to give a right for citizens, that live in a subject of the Russian Federation, to sue the President's decree about the retirement of a highest official in a subject of the Russian Federation. This measure will guarantee a real judicial protection for electoral rights for citizens. As a result, the article extends constitutional knowledge about measures of constitutional legal enforcement to highest officials in a subject of the Russian Federation.

MEASURES OF CONSTITUTIONAL LEGAL ENFORCEMENT
 IN THE CONSTITUTIONAL LAW OF BRAZIL

The subject. The article is devoted to different measures of constitutional legal enforce-ment in the constitutional law of Brazil, their analyzing, depending on main goal of coer-cion.
 The purpose of the paper is to extend constitutional knowledge about measures of consti-tutional legal enforcement and to demonstrate generic character of constitutional legal enforcement theory for different countries.
 The methodology of the study includes general scientific methods (analysis, synthesis, de-scription) and legal methods.
 The main results and scope of their application. The author describes different measures of constitutional legal enforcement in the constitutional law of Brazil. Constitutions of foreign countries contain various measures of constitutional coercion as the main way to resolve constitutional conflicts.
 Among the measures of constitutional and legal coercion enshrined in the Brazilian Con-stitution are: holding the President accountable for abuse of power; temporary termina-tion of the powers of the President of the Republic during the process of bringing him to justice; prohibition of the President and Vice-President of the Republic to leave the terri-tory of the country for a certain period without the approval of the Parliament; recognition by the National Congress of the positions of the President and Vice-President as vacant if they fail to exercise their constitutional powers within 10 days of taking office;holding new elections when the positions of the President and Vice-President are declared vacant if they fail to exercise their constitutional powers within 10 days from the date of taking office.
 Conclusions. Depending on the constitutional system, the history of the state, measures of constitutional coercion may be different in content, but it remains possible to classify such measures depending on the main purpose of their application. The system of measures of constitutional legal enforcement, including measures of prevention, suppres-sion, restoration, responsibility and security is applicable not only for the Russian constitu-tional law, but also for constitutional law of foreign countries, in particular, Brazil.

KEK Law and Its Economic Implication

This article describes implications of Indonesia government policy regarding to Special Economic Zones in Batam. The pioneer of Special Economic Zones had been exist with the enforcement of constitution about free trade and free port. Facilities or convenience is a factor that will attract investors, through this facility, it is expected investors just simply come to the concern government to take care of all permits relating to the investment activities. On the other side, facilities or incentives provided by legislation to investors, such as privileges or special treatment in certain different outside SEZ areas, that is the tax holiday for a period of time, the suspension or exemption of import duty, including tax.

KEK Law and Its Economic Implication

This article describes implications of Indonesia government policy regarding to Special Economic Zones in Batam. The pioneer of Special Economic Zones had been exist with the enforcement of constitution about free trade and free port. Facilities or convenience is a factor that will attract investors, through this facility, it is expected investors just simply come to the concern government to take care of all permits relating to the investment activities. On the other side, facilities or incentives provided by legislation to investors, such as privileges or special treatment in certain different outside SEZ areas, that is the tax holiday for a period of time, the suspension or exemption of import duty, including tax.

Economic and Social Rights

No longer the poor cousin of civil rights, socio-economic rights have steadily found a place in constitutions and jurisprudence across the world. Asia represents, however, a paradox in this development. While the sub-region of South Asia was the site of many early social rights adjudication experiments, East and South-East Asia are only outmatched by Arab States in their reluctance to recognize and judicialize socio-economic rights (and even the right to property). Fitting seamlessly with the region’s embedded mercantilist model of capitalism, it is the most conservative region in the world when it comes to core rights in the workplace – such as the right to strike or fair wage. Courts are held generally on a tight constitutional leash with limited recognition of the judiciary’s competence to enforce socio-economic rights and judges have been less willing than their South Asian counterparts to break constitutional lines. While some features are consistent across the entire region, such as hostility to international oversight of socio-economic rights, there is significant variation in terms of ESR entrenchment and interpretation. In this chapter, we analyze the macro patterns of constitutional recognition and judicial posture across the region (mostly with the help of the TIESR database) and some of the key patterns and puzzles in constitutional enforcement across the region. We conclude with some reflections on the impact of constitutionalising ESR rights in the region in light of the existing empirical evidence.

Prevention and resolution of constitutional conflicts: concept and methods

The subject. The article is devoted to different methods of constitutional conflicts resolution, classification of constitutional conflicts, genesis of constitutional conflict diagnostics theory as a system of different measures for constitutional conflicts prevention.The purpose of the article is to confirm or disprove hypothesis that methods of constitutional conflicts resolution and prevention may be classified by different bases.The methodology of the study includes general scientific methods (analysis, synthesis, description) as well as sociological and economic approaches. The main results and scope of their application. The author describes different groups of conflict resolution methods, it’s types and system. The optimal way to resolve the constitutional conflict is systematic application of the following principles: 1) the legality of measures; 2) priority of human and civil rights and freedoms; 3) ultimo ratio (last resort); 4) proportionality of measures; 5) the effectiveness of measures, aimed at resolving the constitutional conflict. Conclusions. Constitutional conflicts are resolved by special legal methods. Depending on the enforceability of such methods for the conflicting parties, such methods can be classified into: - enforcement methods, that are based on the constitutional power of legal enforcement to be applied to one side of the conflict by the other party or by the actor of the constitutional-legal conflict (measures of constitutional enforcement, the mechanism of checks and balances); - cooperative methods, which are understood as mechanisms for resolving constitutional conflicts, enshrined in the norms of constitutional law and based on cooperation, mutual assistance of the parties to the conflict on a parity basis (various forms of coordination, such as negotiations, mediation, conciliation). Methods and mechanisms of conflicts prevention are not the part of methods of resolving constitutional conflicts, since the first methods are applied before the appearance of constitutional and legal conflicts. A constitutional conflict diagnostics as a method of constitutional conflict prevention is based on risk management system and represents a system of legal and organizational measures, aimed at identifying risks of constitutional conflicts and legal monitoring.

Federal statehood of Russia and Germany in the mirror of constitutional and judicial law enforcement: the importance of German experience for Russian practice

Federal statehood of Russia and Germany in the mirror of constitutional and judicial law enforcement: the importance of German experience for Russian practice

The Contemporary Cambodian Constitutional Enforcement

Studies conducted on the constitutional law-making process have shown that public participation is a key element of the relationship between the government and its citizens, and legitimizes the whole process. The present paper discusses the relationship between the people and the government on the basis of the Cambodian Constitution, both de jure andde facto. As assessments, it takes the 1993 constitutional making process and the public’s participation thereto. This paper aspires to answer the following questions: firstly, how does the constitutional law-making process impact the exercise of constitutional rights in Cambodia, and, secondly, to what extent does public participation play a role in public affairs, especially insofar as the constitution and law making processes are concerned. It further suggests that the concept of meaningful public consultation on constitution and law making should be incorporated in the Cambodian Constitution.

Constitutional Enforcement of Digital Rights

Constitutional Enforcement of Digital Rights

Qualified Immunity and Constitutional Structure

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution. First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a “compensating adjustment” to the separation-of-powers error ostensibly underlying the Court’s decision to allow such suits without congressional approval. For suits against state officials, qualified immunity addresses federalism concerns by leveling the field for constitutional enforcement so that state defendants do not face harsher penalties than their federal counterparts do. Second, while this structural account situates the doctrine within powerful constitutional currents, it does not justify the current qualified-immunity regime. For suits against federal officials, the structural account articulates a poor compensating adjustment because qualified immunity supplies an awkward solution to any separation-of-powers problem. For suits against state officials, the structural account appears to rest on a notion of “freestanding federalism” that is too far removed from the actual constitutional design. Alongside prior scholarship, and for different reasons for suits against federal and state officials, this analysis leaves the present model of qualified immunity ripe for rejection or replacement with a more rights-protective alternative.

Citizen Standing and the Emoluments Clause

The text of the Emoluments Clause provides no explicit enforcement mechanism, raising questions about who may enforce the Clause, and the mechanism by which it might be enforced. Is the Clause enforceable exclusively by collective action — such as an impeachment proceeding by Congress — or is it also enforceable by individual lawsuit? If it can be enforced by private action, who has standing to sue? In the absence of textual guidance, it is necessary to turn to a broader constitutional theory to render enforcement of the Clause coherent. This Article presents that broader constitutional theory. The Article demonstrates that the Emoluments Clause imposes a fiduciary duty on officers of the United States. When that duty is breached, all Americans suffer an undifferentiated injury which can serve as the basis for a private cause of action to enforce the Clause. Drawing on historical context and the constitutional context of the Clause, this Article demonstrates that enforcement of the Emoluments Clause is an example of a power that the Constitution reserves for “the People” to police the political branches. More significantly, this Article presents the insight that, to date, separation-of- powers analysis has neglected this important aspect of constitutional design. The Supreme Court’s constrained understanding of the role of “the People” in the development of constitutional law has been increasingly the subject of “populist” criticism from those who understand the Framers to have constructed a central rather than derivative role for “the People.” While most of that criticism has been directed at the exclusive role that the judiciary plays in creating constitutional law, this Article applies a similar critique in the context of constitutional enforcement.

URBANIZATION IN RUSSIA: SOME PROBLEMS OF CONSTITUTIONAL LEGAL REGULATION AND LAW ENFORCEMENT

The subject is constitutional legal issues of urbanization in Russia.The purpose of the article is to identify main constitutional legal problems of urbanization in Russia and suggest the ways of their settlement.The methodology. The author uses a dialectical method, a method of analysis and synthesis, a formal legal method, a comparative legal method.Results and scope of application. Number of problems of constitutional and legal regulation and law enforcement in the context of urbanization were analyzed. The role of cities and villages in the formation of Russian society and the state, legal and socio-economic features of law enforcement in urban and rural life, the impact of scientific and technological progress on cities were studied.The author believes that the Russian Constitution is "the Constitution of cities" because almost any legal peculiarities of the constitutional legal regulation of the forms of urban and rural life are not incorporated. It is one of the causes of the degradation of the modern village. "City state" formation anticipated a number of negative factors. The author identifies the factors that determine prospects of the development of modern law enforcement in a situation of global urbanization.Conclusions. The urbanization process cannot be artificially stimulated in favor of doubtful socio-economic achievements. We can’t ignore the quality of law-creation from the point of view of realization of interests of the population and ensure effective law enforcement at all levels of government and management.

Cultural Rights and the Margin of Appreciation Doctrine: A Legal Tool for Balancing Individual Rights and Traditional Rules

The aim of this article is to suggest a way forward for conflicts between individual rights and group rights, and between policies of equality and policies of difference. I propose a strategy to deal with problems of recognition, by establishing a legal mechanism in which powers and responsibilities are shared by the group and the state. This strategy does recognize the importance of the subsidiarity principle, and it is based on the European Court of Human Rights (ECtHR)’s margin of appreciation doctrine. This approach aims to combine respect for fundamental rights with the defense of a group’s identity, by allowing group representatives a wider margin of interpretation in constitutional rights enforcement. At the same time, I argue that this perspective may be a judicial mechanism to encourage groups to gradually develop their traditions, and to update them to constitutional standards.

Telaah Kritik Atas Putusan Mahkamah Konstitusi dalam Perkara Perselisihan Hasil Pemilukada Provinsi Jawa Timur

Decision of Constitutional Court of Number 41/PHPU.D-VI/2008 is a controversial judicial decison in practices of Constitutional Court in Indonesia. The decison had legal basis of Law of Number 18 of 2008 that against formally with the Constitutions of 1945. Nevertheless, in fact, inconstitutional practice of the court system has taken legitimacy source of convention. It is very important for development of constitutional law enforcement in Indonesia, that the decision was not only show how the Constitutional Court improves its constitutional authorities to handle disputes of regional head election result in Indonesia, but also that was first time how the Constitutional Court has brought its justice paradigm change toward process of substantial justice and law enforcement.

Social Rights and Transformation in South Africa: Three Frames

ABSTRACTThis article conceives of transformative constitutionalism as processes of constitutional enactment, interpretation and enforcement which help bring about fundamental changes to South Africa's current unjust economic and social structures. Transformative strategies seek to redress the underlying structures which generate patterns of material deprivation and status hierarchies. Based on this understanding, the article analyses the transformative potential of three ways in which social rights have been framed in law and policy discourses in South Africa: (1) social citizenship; (2) equality; and (3) participation. The concept of a frame is useful as it acts as an ‘interpretive lens’ which highlights certain dimensions of legal responses to the complex, multi-faceted social problem of poverty. By drawing explicit attention to how the meaning of rights is constructed, framing invites reflection on what is included and excluded from the frame, and how this might shape our understanding of the nature of social rights violations and transformative remedial responses. Each frame is evaluated in terms of its strengths and limitations in stimulating and supporting transformation in the sense described above. Strategies for strengthening the transformative development of each frame are also identified.

Remedial Practice Beyond Constitutional Text

This Article advances the comparative constitutional literature by examining the exercise of remedial discretion in rights litigation. It compares how the Supreme Court of Canada and the Constitutional Court of South Africa remedy unconstitutional legislation under their respective, relatively new, bills of rights. It uses an internal legal approach and, rejecting universalism and convergence, it pays attention to difference in constitutional texts. By reporting remedial practices and studying the written and unwritten factors that judges identify as conditioning their remedial determinations, the Article studies the significant gap between authoritative text and practice. In a warning for those who draft bills of rights, who rely on their texts to forecast judicial practice, or who simply aim to delineate and understand the exercise of judicial power under bills of rights, judges’ discussion reveals that the scope of action they perceive as legitimate may differ from what a rights instrument’s text implies. This gap has implications for efforts to classify forms of judicial review as strong-form or weak-form, as it may reduce the effective distance between different models as they appear on paper. The Article identifies shifting and contradictory views about reading-in versus invalidating legislation, and about immediate versus delayed orders. Based on its comparison of judicial remedial practices, the Article flags the unavoidable uncertainty of applying a bill of rights to legislation. It interprets the practices of the two countries’ highest courts as embodying a preference for a judicial posture of legislative engagement over one of constitutional enforcement. This conception of the judicial role emerges from similarities in practice, despite differences in the authorizing constitutional texts. The Article establishes a firm basis for normative evaluation of the legitimacy of judicial remedial discretion exercised with a view to engaging the democratic branches of government.