Constitutional Court Judges Research Articles

VERIFICATION OF POLITICAL PARTIES PARTICIPATING IN GENERAL ELECTIONS BEFORE AND AFTER THE DECISIONS OF THE CONSTITUTIONAL COURT

Political parties are the political superstructure of a democratic country, namely as a means for citizens to occupy political positions through general elections. The requirements for passing verification as election participants by the General Elections Commission must be met by political parties contained in the election law, by making it harder for political parties to pass verification as well as exceptions for several political parties that have met certain verification requirements so that they are immediately designated as participants to next elections. The exception is not in accordance with Article 27 paragraph (1), Article 28D paragraph (1) and Article 28D paragraph (3) of the 1945 Constitution as unconstitutional through several decisions of the Constitutional Court. The purpose of this study is to determine the conditions for passing the verification of political parties participating in the General Election before and after the Constitutional Court Decision, and analyze the considerations of the Constitutional Court judges regarding the requirements to pass the verification of political parties participating in the General Election based on the principle of equal treatment before the law, using a normative approach. It can be concluded that the considerations of the Constitutional Court regarding the verification requirements of political parties participating in the general election are inconsistent because the material test of the 1945 Constitution used are different and there is not required for the Constitutional Court to use jurisprudence as a basis for consideration even though there are similarities in substance.

OVERSIGHT OF THE LAWS’ CONSTITUTIONALITY IN THE JORDANIAN POLITICAL SYSTEM

The constitutional oversight radically aims to embed the law’s principles by monitoring the laws’ implementation, protecting the freedoms of the individuals, and reinforcing the constitution respect. The Jordanian judiciary practiced its right to monitor the constitutionality of laws by refraining from applying the legislative text that contradicts the constitution. This situation continued until there were calls to hand over the constitutional oversight to an independent body whose attention is focused on verifying that the public authorities in the state respect the constitution’s supremacy. Accordingly, the constitutional court was established based on the promulgation of Constitutional Court Law No. 15 of 2012. The constitutional court was established basically to oversight the constitutional legislations. The present study discussed the constitutional oversight through five main dimensions; Framework and organization of the Constitutional oversight in Jordan, the jurisdictions of the Constitutional Court, the nature of the Constitutional Court and its judicial policy, the right to litigation and ways to initiate the constitutional lawsuit, and the validity of the Constitutional Court judgments and their related legal effects. According to the study methodology, a set of recommendations was provided.

Banning of Future Forward

On 21 February 2020, Thailand’s Future Forward Party was dissolved by order of the Constitutional Court. [1] Sixteen members of the party executive – including leader Thanathorn Juangroongruangkit, secretary-general Piyabutr Saengkanokkul, and spokesperson Pannika Wanich – were banned holding political office for the next ten years.[2] Eleven of the sixteen were also party list MPs. The party’s crime? Illegally accepting two loans from Thanathorn, totalling 191 million baht. The case hinged on the Court’s interpretation of Sections 62 and 72 of the 2017 (2560) Organic Act on Political Parties.
 
 [1] For the full decision, see Constitutional Court Judgement 5/2563, 21 February 2020, http://www.constitutionalcourt.or.th/occ_web/download/article/article_20200228165606.pdf
 [2] For an official English summary of the judgement, see https://www.constitutionalcourt.or.th/occ_en/download/article/article_20200305112117.pdf

Analysis of Problems of Oversight of the Constitutional Court

Constitution through decision number 005/PUU-lV/2006 dated 23 August 2006 which raises problems in a statement that is in the articles of supervision of the judicial commission. Where the supervision of judges regarding the constitution is contrary to the 1945 Constitution of the Republic of Indonesia and does not have a binding legal power. In an oversight of constitutional judges associated with a principle of independence in which the judicial power to know the supervisory system of constitutional judges in preventing the power of judges to realize an ideal and clear oversight. The article I made aims to find out the knowledge of constitutional court oversight to prevent abuse of judicial power and constitutional court judges must also know how the existence of the constitutional court judge supervisory body in supervising constitutional court judges. This study uses the library research method or the results of research that has been carried out, as for the data used here, among others, which have references or primary legal language from legislation and decisions, secondary legal materials from books, journals, thesis, and tertiary legal material from a dictionary, encyclopedia. Where based on the analysis of the data carried out, it was obtained from a conclusion regarding the regulation of supervision of constitutional judges regarding article 21 paragraph 1 letter a where the sound is PMK constitutional court regulations number 2 of 2014 concerning the honorary assembly of the constitutional court. Where, according to the author, the internal supervision of constitutional judges has not been effective or is said to be due to several factors which have resulted in weak internal supervision, the first being the spirit of defending the conference and the absence of a genuine will from the judiciary leadership to follow up on the results of the internal supervision of judges which thus opens up opportunities for judges who are proven to have violated the code of ethics against the constitutional court. So in order for the supervision of constitutional judges to be good and ideal, the supervision must be carried out by an external supervisory institution. Yes, the judicial commission can provide more effective oversight and maintain the dignity and dignity of constitutional judges within the scope of the constitutional court.

HOLDING THE EXECUTIVE TO ACCOUNT? Public Protector v President of the RSA 2021 (9) BCLR 929 (CC)

This case is part of a growing body of jurisprudence relating to the Public Protector (PP). In particular, it concerns the PP’s mandate, contained in section 182 of the Constitution of the Republic of South Africa, 1996 (the Constitution), to “investigate any conduct in state affairs, or in the public administration, that is alleged or suspected to be improper or to result in any impropriety or prejudice”. The PP is further empowered in terms of the Public Protector Act (23 of 1994) (PP Act) to investigate, inter alia, maladministration, the unjustifiable exercise of power and dishonest conduct.In terms of this statutory framework, the PP’s primary function is to hold the executive to account. The Constitutional Court judgment that is the focus of this case note is an example of the PP attempting to hold the President accountable, but failing to do so as a result of producing an error-strewn report that was rejected by a full bench of the High Court and by a majority of judges in the apex court. On the facts, it is possible that had another PP produced a different report – one that satisfied the judges’ concerns – the President might have been less successful in avoiding public accountability.Apart from the main issue of the (at time of publication) now-suspended PP’s inability to hold the President to account, the judgment is significant from an administrative law perspective. In particular, the judgment adds to the debate on whether the PP’s remedial action amounts to administrative action.Although the Supreme Court of Appeal (SCA) held in 2018 that the PP’s remedial action does not constitute administrative action, the question has yet to be definitively dealt with by the Constitutional Court, with judges generally being content to leave the question open. Confusingly, the court a quo held that it was common cause that the PP’s reports do not amount to administrative action, but the judgment nevertheless made numerous references to the right to just administrative action. While Jafta J chose to leave the question open in Public Protector v President of the RSA (2021 (9) BCLR 929 (CC)), he engaged with the SCA’s judgment in Minister of Home Affairs v Public Protector (2018 (3) SA 380 (SCA) (Home Affairs)) and set out some guidelines on how the issue could be dealt with in the future.

AN EVALUATION OF THE SELECTION MECHANISM OF CONSTITUTIONAL JUDGES IN INDONESIA AND SOUTH KOREA

This paper aims to evaluate the appointment process of Constitutional Court Judges in Indonesia. A guarantee of the judiciary independence is a foundation of a modern democratic state because a judge’s appointment depends on a selection process. Using normative and empirical legal study, the study shows that Indonesia does not have a standardized selection process among the proposing organs regarding assessment and procedure. The selection mechanism is decentralized. It relies on the proposing organs respectively. On the other hand, South Korea has a more standardized selection process, especially on confirmation hearings organized by the National Assembly. The Korean model, which emphasizes the National Assembly confirmation hearing, has strongly contributed to the selection process because it ensures transparency and accountability. The study suggests that Indonesia should seriously consider establishing a confirmation hearing system for justices like South Korea. A more transparent selection will reduce the number of corrupt public officials (justices). Unfortunately, the current Korean system also needs improvements. The suggestions include (1) separation of the ethical and professional competence evaluation phase, (2) extension of the confirmation hearing duration, (3) enhancing the requirement for witness attendance and submission of data, and (4) prohibition of the use of personal hearing data.

Paid in full: The enduring battle for advanced emolument attachment order debtor protection in South Africa

Following the Constitutional Court’s landmark judgment in University of Stellenbosch Legal Aid Clinic v Minister of Justice and Correctional Services 2016 6 SA 596 (CC), significant legal reforms were introduced to the South African debt collection landscape in 2018. Amendments to the Magistrates’ Courts Act were aimed at combatting abuses in the popular emolument attachment order (“EAO”) process, where EAO debtors had suffered significant exploitation at the hands of unscrupulous creditors and their collection agents. These important amendments were aimed at requiring judicial oversight during the issuing of new EAOs. Correcting the undisputed devastation wrought by past and continuing EAO abuse remains the responsibility of individual debtors, their employers, and organisations like the Legal Practice Council. Efforts in this regard are severely hampered by the prevailing lack of transparency and the ambiguity of legislation associated with the EAO mechanism. Specifically, legislation calls on the enforcement of EAOs “until the relevant judgment debt and costs have been paid in full”, while no definition or explanation is tendered to elucidate what this entails. As a result, EAO debtors remain at the mercy of their creditors, who are able to escalate even minor debts into substantial EAO debt collections by the unilateral addition of interest, collections fees, and legal costs. Several important legal developments related to this issue have occurred since the relevant Constitutional Court judgment and subsequent legislative amendments. This article will consider these developments to establish if the position of EAO debtors, exploited post issuing of an EAO, has improved in recent years.

Aantekeninge: Overview of constitutional court judgments on the bill of rights – 2022

This overview covers the following: 1 Equality 2 Personal freedom and security 3 Dignity 4 Freedom of expression 5 Children’s rights 6 Access to information 7 Access to courts 8 Arrested, detained and accused persons

Zasada pierwszeństwa prawa Unii Europejskiej wczoraj i dziś

The principle of the primacy of European Union law is one of the most important and, at the same time, the most controversial principles of this law. The jurisprudence of the Court of Justice pointing to the absolute primacy of EU law, even over national norms of constitutional character, is not unconditionally accepted by the Member States. They are challenged in particular by constitutional courts, which want to retain the status of a last word court, reserving the right to assess the constitutionality of EU law at least in terms of fundamental rights, acting within the limits of competences conferred in the Treaties and the protection of fundamental constitutional identity. Recently, there are more and more judgments of constitutional courts that refuse to apply EU law, and the allegations against the priority principle are often financial or political. Denying the principle of priority, which is an exception, as in the case of the Czech, German or Danish, in some cases, especially Poland, becomes a rule that allows, under the misuse of constitutional identity, to lower the standard of legal protection resulting from EU regulations.

ANALISIS PENGANGKATAN KEPALA DAERAH YANG MENYIMPANGI PUTUSAN MK NO 15/PUU-XX/2022 DAPAT MENGGARADASI HUKUM

In the elucidation of the Constitution of the Republic of Indonesia, it is emphasized that Indonesia is not based on power (machstaat) but based on rechtsstaat or law. The definition of machstaat includes, "Ligitimizing State Actions Based on Power". That authority is translated, the government can give the ability to carry out certain legal actions intended to cause legal consequences, including the emergence and disappearance of certain legal consequences. Thus, rechstaat should not be translated, someone can act on behalf of the government or the state to carry out or take legal action, arguing that the state wants to create justice, as if everything must be acceptable to the public. This study will analyze legal issues, facts, and other legal phenomena related to the legal approach. Research in the form of juridical, descriptive with its analysis limits the issue of appointing regional heads ahead of the 2024 presidential election which ignores the considerations of the Constitutional Court Decision. This method will not conclude that regional elections are generally accepted regarding the appointment of regional heads outside of their standard. In conclusion, the Judicial Review of Article 201, Law Number 10 of 2016 concerning Pilkada which the Constitutional Court Judges consisting of the Chairman, Anwar Usman, and its members in their Amar Decision rejected the petition of the Petitioners in its entirety. The discussion occurred because the rejection of the lawsuit was inconsistent with considerations that seemed to open up space for the public or civil society to demand an open and democratic government in appointing regional heads ahead of the 2024 presidential election.

Post Amendment of Judicial Review in Indonesia: Has Judicial Power Distributed Fairly?

Distribution of power in Indonesian constitutional system not only occur amongst state organs but also within Indonesian judicial system. The Supreme Court and Constitutional Court share their power to review several regulations. The 1945 Constitution delivers power to review act against constitution for Constitutional Court and to review regulations below an act for the Supreme Court. However, this distribution of power is vulnerable to contradicting each other, with the possibility of having clash of judgment. There is no guarantee that the Supreme Court will fully obey the Constitutional Court judgment. So, the research question needs to be solved such as judicial Review pre-the Amendment of the 1945 Constitution process, and judicial Review Post the Amendment of the Constitution implement, that will be main points of research purposes. Furthermore, the main problem is the distribution power between Constitutional Court and Supreme Court, whether have distributed fairly or not. Another problem after amendment is about disagreement amongst judges. Before amendment, judges were forbidden to show their disagreement clearly in the verdict, but now allowed. This fact has led to public distrust. They have questioned the legitimacy of the verdict having disagreement, whether should be obeyed or be denied.

Amendment to Term of Office of Constitutional Court Judges in Indonesia: Reasons, Implications, and Improvement

After the amendment to the Constitutional Court Law, constitutional court judges would be dismissed honorably when they attain the age of 70 (seventy) years old. Problem arises, where the transitional provisions of the third amendment to the Constitutional Court Law are not applicable prospectively but retroactively. Hence, the implementation of the amendment to the term of office of constitutional court judges also brings an impact on the incumbent constitutional judges in the Constitutional Court. This study had three objectives. First, to identify the underlying reasons (ratio-legis) for the amendment to the term of office of constitutional court judges to the maximum age limit of 70 years. Second, to analyze the implications of arranging a maximum age limit of 70 years for the position of constitutional court judges. Third, to recommend alternative arrangements for the term of office of constitutional court judges in Indonesia. This was a legal doctrinal research with a qualitative analysis. The results showed that (1) the reasons for the amendment to the term of office of constitutional court judges are due to the open legal policy, globalization and efforts to build the pro-majoritarian power in the Constitutional Court. (2) This amendment brings implications, i.e., the distortion of judicial independence, conflicts of interest and a declined public trust. (3) Improvements can be made by revising the transitional provisions and trying other alternatives by arranging the term of office of the judges through the constitution.

Doubting the Impartiality: Constitutional Court Judges and Conflict of Interest

The Constitutional Court ruling on the third amendment to the Law on the Constitutional Court is worth discussing. In the judicial review, the justices judged a case in which they have interests. The interests are related to a requirement for being a Constitutional Court justice, term of office for Constitutional Court justices, and term of office for the chief justice and deputy chief justice. Can they be impartial? This study is aimed at three things. First, analyzing their interpretation through legal annotation. Second, identifying impacts the ruling has on the Constitutional Court. Third, providing a road map for judicial review related to Constitutional Court judges. This is mixed legal research using primary and secondary data. This study has found that the judges are not impartial due to conflict of interest. They have compromised universal principles of the judiciary. For the sake of impartiality, they should not be judges in their own cause. Instead, the Supreme Court should have the authority to review legislation on them.

The Adverse Effect of Immigration Laws on a Migrant Child’s Right to Family Life: A Reminder of the South African Nandutu Case

ABSTRACT A child’s right to grow up with its parents is presented in articles 9 and 25 of the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of a Child, respectively. South Africa has ratified both treaties, and thus has a duty under international children’s law to protect children’s rights in domestic South African law. At the national level, section 28 of the Constitution of the Republic of South Africa, 1996, contains a variety of rights of children. Particularly, section 28(1)(b), akin to international children’s law, protects a child’s right to family or parental care. Using a child-rights-based approach, guided by the rationality of the principle of best interests of the child and a child’s right to life, this article seeks to appraise the 2019 judgment of the South African Constitutional Court in Nandutu v the Minister of Home Affairs, in which the Court declared reg 9(9)(a) of South Africa’s Immigration Regulation of 2014 inconsistent with the Constitution. In analysing this decision, legislation, and case law, this article further aims to highlight the significance of Nandutu, through the lens of a migrant child’s right to family life.

Analisis Metode Penafsiran Mahkamah Konstitusi dalam Perumusan Putusan Nomor 91/PUU-XVIII/2020 terkait Pengujian Formil Undang-Undang Nomor 11 Tahun 2020 tentang Cipta Kerja

Interpretation is one of the legal discovery methods that can provide a clearer explanation of the text of the law. The method of interpretation is a means or tool for understanding the meaning of the law, so that its justification lies in its usefulness for carrying out concrete provisions and not for the sake of the method itself. This paper aims to identify the method of interpretation used by judges in court and find out the method used by judges in interpreting the decision Number 91/PUU-XVIII/2020 on the formal review of Law Number 11 of 2020 on Job Creation. The method used is a normative method which positions law as a system of norms for analyzing laws that have been decided by judges through court proceedings. The approach used is the law approach. Data sources come from secondary data sources with primary legal materials, namely Law Number 11 of 2020 on Job Creation and Consitutional Court Decision Number 91/PUU-XVIII/2020 and secondary law, which are law books and journal articles. Technical data analysis is content analysis which is presented with analytical descriptive. The results of this study indicate that the method of interpretation used by Constitutional Court Judges in interpreting Decision Number 91/PUU-XVIII/2020 regarding the formal review of Law Number 11 of 2020 on Job Creation is a method of systematic interpretation, doctrinal interpretation, and sociological interpretation.

Putusan MK Yang Bersifat Positif Legislature

The Constitutional Court in the case of testing the constitutionality of an Act is declared granted, then by the provisions of the laws and regulations only given the authority to declare the material content of paragraphs, Articles, and / or parts of the Law contrary to the 1945 Constitution and has no binding legal force. Or make the process of making laws contrary to the mechanism of formation that has been regulated by the laws and regulations (negative legislature). However, in some cases the Constitutional Court in its ruling included new legal norms (positive legislatures) that are considered to have entered the realm of legislative authority. So based on this there is an increase in the authority of the Constitutional Court from negative legislature to positive legislature. Based on the picture of the problem, researchers want to further know how the constitutional court's authority in issuing positive legislature decisions, then what consideration factors are used by constitutional court judges in issuing positive legislature rulings. This research is assembled based on the type of juridical normative research by utilizing the legal approach and the case approach. The theory used in solving the above problems is to use progressive legal theory and positive legal theory. So that with the data obtained from the results of case review and law, it is processed by reducing data and cases. The results of this study state that the Constitutional Court in the case of testing the constitutionality of the Law based on norms stipulated in the laws and regulations only as a norm-spinning or negative legislature. However, based on the knife analysis of the progressive legal theory, the authority can become a new norm maker with various rules included in the sound of the verdict or positive legislature. The factor considered by constitutional court judges in stringing together the ruling is substantive justice considerations based on progressive theory, then this is supported by the purpose of the establishment of law in Islam is to realize justice.

Constitutional review of negotiated international investment agreements: Strengths and shortcomings of the Colombian Constitutional Court’s approach

Abstract Increasingly, international investment agreements (IIAs) and investor–state dispute settlement (ISDS) mechanisms relate to, and at times conflict with, constitutional rights, principles, and rules. Because of this interrelationship, since 2017, constitutional courts in several regions of the world have had to examine constitutional charges brought against IIAs when conducting their ex ante constitutional review of negotiated IIAs. In order to fill significant gaps in the current literature on the subject, this article conducts an in-depth analysis of the judgment of the Colombian Constitutional Court (CCC) which examined the constitutionality of the negotiated bilateral investment treaty (BIT) between Colombia and France (“the investment Agreement”). This article demonstrates that, while the CCC’s judgment has several positive aspects, it also has some significant shortcomings. The Court set the basis for a stricter ex ante constitutional review of IIAs, specifically the rationales, methods, and grounds for review that constitutional courts can use to conduct such a review. The Court also shed light on the methodology to interpret IIAs, the conditional constitutionality approach, and orders that constitutional courts can adopt in this type of review. However, this article demonstrates that the Court’s review over many aspects of the three sets of elements that it covered—i.e. the investment Agreement as a whole and the Agreement’s provisions on standards of treatment and ISDS, was not thorough or it applied a looser test than its reasonableness test. This research also shows that the Court did not engage in review of the investment Agreement concerning its compatibility with economic, social, and cultural rights.

COHABITATION AND THE SAME-SEX MARRIAGE. A COMPLEX JIGSAW PUZZLE Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs 2006 3 BCLR 355 (CC)

The aim of this note is, firstly, to give an overview of the Constitutional Court (CC) judgment in Fourie v Minister of Home Affairs; secondly, to discuss the consequences of same-sex marriages; thirdly, to highlight certain areas of the law that require legislative intervention to clarify the application of common law rules to same-sex spouses; and, lastly, to examine the discrepancy that will exist after December 2006 between same-sex and heterosexual cohabitees.

UBUNTU AND THE AMENDE HONORABLE – A MARRIAGE BETWEEN AFRICAN VALUES AND MEDIEVAL CANON LAW

The South African law of damages purports to be compensatory in nature. Although the inherent historical punitive element of the actio iniuriarum is generally recognised, the Constitutional Court has held that punitive damages have no place in South African law, because they would inter alia violate the public law-private law divide. The actio iniuriarum, the remedy for defamation, also places strain on the right of freedom to expression, because potential defendants could be intimidated by large damages awards from exercising this right. At the same time it protects the right to dignity of the individual. In the past decade the idea has been mooted by academics and also in our case law that the revival of the medieval amende honorable in our law would solve the problem of balancing the rights to freedom of expression and dignity. This remedy involves an apology by the defendant, and because with this remedy a potential defendant does not face financial ruin, his right to freedom of expression is upheld. At the same time an apology by the defendant for defamatory remarks could do much more to restore the plaintiff’s dignity than a monetary award.This note juxtaposes the African concept of ubuntu with the amende honorable, a remedy which may be traced back to medieval European canon law. In the Constitutional Court judgment of Dikoko v Mokhatla (2006 6 SA 235 (CC)) two of the judges opined that the amende honorable has a place in the South African law of defamation, and moreover, that it is fully compatible with the notion of ubuntu.

Final and Binding Essence on Constitutional Court’s Judgment in Judicial Review

Mahkamah Konstitusi, has specific characters, one of the typical characters is the final and binding judgement. The reality is many judgements of the constitutional court are not complied with and tend to be ignored by the legislature. Then the petitioner who feel that their constitutional rights have been violated do not have instruments to fight for their constitutional rights that have been violated by the legislators. Based on the statement above, there are problems which is studied, what underlying the basic consideration of the formation of Constitutional Court in Indonesia? And what is the essence of the final and binding of Constitutional Court’s judgements? The aim of this study is to determine and comprehend the essence contained in final and binding nature of the Constitutional Court’s judgements, especially in judicial review of UUD 1945. The method of law study used was normative law research method which is law research from internal perspective with the object of the study was law norms. It can be concluded that the basic rationale of MK formation in Indonesia, from political side, the existence of MK is required to balancing the legislators’ power. From the law side, the existance of MK is the consequence from the change of MPR supremacy become constitution supremacy. The essence of final and binding Constitutional Court’s judgement is the stand- alone judgments, so that the judgement cannot be taken by legal action. Constitutional Court judgement is erga omnes which means binding on other parties, including state administrator.