State Constitutional Law Research Articles

Division Construction Government Authority In Law Number 23 of 2014

The concept of the division of government affairs in deconcentrating and co-administration has a long history in Indonesian constitutional records. Amendments to the 1945 Constitution, especially the second amendment concerning the concept and pattern of the division of a government, have indicated that a centralized government would actually pose a threat to disintegration so that strengthening decentralization is not a weakening of Indonesia, but an effort to strengthen it. In other words, the choice to use the concept of autonomy as broadly as possible should be understood as a way to build a just balance between central and regional power relations. One of the issues regarding the constitutionality of regional government that has become a space for academic debate after the issuance of Law No. 23 of 2014 concerning Trade Law relates to the concept of the division of government affairs between government structures. Moving on from the point of view of State Constitutional Law and State Administrative Law, the analysis will be directed at the parameters used to construct the division of authority between government structures based on executive power (Article 4 paragraph (1) of the 1945 Constitution of the Republic of Indonesia) or based on the authority stipulated by the constitution. In another part, Law Number 23 of 2014 has reduced the essence of the concept of deconcentrating which previously was only carried out by the Governor, now it is also carried out by the Regent/Mayor. In such a concept, the problem is how to juxtapose the decentralization method with other methods such as deconcentrating and co-administration and institutionalization of the three principles.

Applied cratology and the political process through the prism of the scientific heritage of E. I. Kozlova

The will of the multinational people of Russia is the basis of the political process of a modern state. The values enshrined in the Constitution of the Russian Federation are a guideline for the political process, legal consolidation of goals and objectives facing the state and civil society; the basis for specific legal regulation and act as a criterion for balancing various interests. The article analyzes the creative heritage of Professor E. I. Kozlova in terms of her study of fundamental issues of the theory of democracy and various forms of its manifestation and mechanisms of implementation. Over the course of many years of her creative life, Ekaterina Ivanovna Kozlova has studied the evolution of the conceptual foundations of democracy in the Russian Federation, the quintessence of which is the will of the people. In light of the constitutional amendments of 2020 and the digitalization of state and public life, ideas, fears and judgments about the significance of the will of the people of the classics of state (constitutional) law take on a new meaning. The institutionalization of the political process and its legal concept is the basis of the modern theory of practical cratology. The author’s vision of the constitutional design of the foundations, tasks and subjects of the political process is proposed.

Наука конституционного права о реформах государственного права

The author attracts attention to the difference between the constitutional law science, the pre-constitutional state law science and the state ideology. The attitude to state law reforms depends on the researcher’s position: the position of a specialist in state law or constitutional law. Constitutional scholars believe that reforms are actions aimed at movement of the country towards the constitutional structure. Reverse actions are called counter-reforms. The struggle for law stipulates resistance to counter-reforms of the state.

An Issue of First Impression? State Constitutional Law and Judging the Qualifications of Candidates for the House and Senate

An Issue of First Impression? State Constitutional Law and Judging the Qualifications of Candidates for the House and Senate

Lavatories of Democracy: Recognizing a Right to Public Toilets Through International Human Rights and State Constitutional Law

Lavatories of Democracy: Recognizing a Right to Public Toilets Through International Human Rights and State Constitutional Law

Pirates of Privacy: How Companies Profit Off Your Personal Data by Using Capital Surveillance Methods in Criminal Prosecution

Surveillance involves monitoring an individual as a method of obtaining information for future use, and is defined as continuous observation of a place, person, group, or ongoing activity in order to gather information. Governments are normally restricted by judicial safeguards such as warrants and common law when it comes to surveillance methods of obtaining an individual’s private data. However, private companies are not. When users agree to terms and conditions on technology apps they often are not aware that they are consenting to being monitored and their information could easily be sold, even to the government. This process of capturing and commodifying personal data for profit-making is commonly referred to as “surveillance capitalism”. Surveillance capitalism poses a threat to privacy rights because the methods by which users’ online data is collected are overly intrusive due to the nature of how the data is stored on these apps. Additionally, the data collected by private companies can be sold, distributed, and used against the user’s legal interests and liberties. However, both International Law and the United States Constitutional Law recognize the right to privacy. This raises the question: How do we protect privacy rights when much of our personal data is now stored digitally and on technological applications that society is becoming reliant on for everyday tasks? Privacy laws have not yet adapted to address this modern day challenge. This article discusses the legal understanding of privacy rights, the threat modern-day surveillance capitalism poses to those rights, and possible solutions for updating outdated privacy laws.

Questioning Strict Separationism in Unsettled Times: Rethinking the Strict Separation of Church and State in United States Constitutional Law

Contemporary case law in the United States surrounding the establishment clause of the federal Constitution has entered a period of remarkable uncertainty. Now is an appropriate time to revisit the legal foundations of the Supreme Court’s seminal cases of Everson v. Board of Education (1947) and McCollum v. Board of Education (1948). These cases initiated the Court’s strict separationist construction of the establishment clause. In response to critics who see these cases as without judicial warrant, I argue that the holdings rest on a particular form of substantive due process. Further, I defend the methodology the Court deploys in these cases. Recognizing the legal foundations of Everson and McCollum and the tenability of the method the Court deploys in these cases improves our understanding of important Supreme Court case law. However, it also highlights new lines of critique of the Court’s strict separationist jurisprudence—a conclusion especially relevant today, given the Court’s willingness to revise long-standing precedents.

«Putinism» as a variety of authoritarian regime

The article is devoted to the study of the concept and main features of the authoritarian regime, the phenomenon of «Putinism» and its specifi c features. It is substantiated that the topical issues of legal science, in particular the theory of state and law and constitutional law, include the defi nition of the essence and features of the political regime as an important component of the state, as well as their varieties. The most common political regime in human history is authoritarianism. The scientifi c positions on the interpretation of the meaning of the concept of «authoritarian regime» are analyzed and its main features are highlighted. This article notes that among the key factors that contributed to the authoritarian trend are the weak socio-economic effi ciency of young democracies, the personal insecurity of people who rely on a «strong hand». The frustration of the citizens of the new democracies in their governments has led to a loss of faith in democracy, resulting in instability and political confl ict. On the other hand, the economic success of countries with authoritarian rule «works» to legitimize them and becomes an unfavorable factor for the global spread of democracy. It is noted that today the most common are two theories of understanding the essence of the regime of «Putinism». In this article, the author describes the authoritarian regime, and on its basis identifi es specifi c features of «Putinism» as a kind of authoritarian regime. Key words: political regime, hybrid regime, authoritarian regime, authoritarianism, «Putinism».

CONSTITUTIONAL LAW AROUND THE GLOBE: FUNDAMENTAL RIGHTS, THE FREEDOM OF SPEECH AND HATE SPEECH IN THE UNITED STATES

This paper exploring the Freedom of Speech in the United States Constitutional Law is part of the series “Constitutional Law Around the Globe”. This chapter of the series focuses on “Fundamental Rights and Freedom of Speech” in contemporary democracies. First in the row, this paper analyzes the Freedom of Speech in the First Amendment to the United States Constitution and how it has been shaped by the Supreme and lower courts over time, especially on the so-called hate speech. A final paper will approach the legal systems composing the series in a comparative perspective.

Lifting the veil of secrecy – dissenting opinions in the subnational constitutional courts of Germany

ABSTRACT Dissent is an integral feature of decision-making in collegial courts. However, unless procedural rules provide for the publication of a dissenting opinion and judges make use of this opportunity, courts appear to outsiders as impersonal, monolithic institutions. The following contribution explores dissenting opinions in German subnational constitutional courts (Landesverfassungsgerichte). Today, most of these courts provide for open dissenting opinions. Based on an empirical analysis of 1,115 cases decided by the constitutional courts of ten states (Länder) over a ten-year period (2009–2018), I find that dissent is driven predominantly by decision-level factors. Notably, the likelihood of dissent increases where a decision taps into the relationship between federal and state constitutional law and where more than one dissenting opinion is published. By contrast, I find no evidence for ideology or career background to impinge on the decision of a judge to author a dissenting opinion.

Strategic Issues of the Position of the President 3 Period In the Perspective of State Constitutional Law in the Restriction of Power

The subject of extending the presidential term to three terms is one that all of us are concerned about. In this example, in the contestation of the dynamics of government and politics in Indonesia, the discourse of the desire to change the 1945 Constitution aims to homogenize the discourse views of the interests of power, making this an intriguing subject to research. As a concept of preventing the authoritarian pendulum in a country, it is required to limit the power held by a head of state and head of government, particularly the president. The term of office for presidential candidates in Indonesia is controlled by the country's presidential system of government. Like the current dynamics in the Indonesian government, that dilemmas and conflicts of interest stemming from pragmatic reasons for legal politics in Indonesia appear to want to smoothen the constitution, namely Article 7 of the 1945 Constitution, which has limitedly affirmed the limits of positions held by a president, namely two terms. by using the provisions of the original intense article 37 of the 1945 Constitution to delegate to three terms. In essence, the presidential term restriction is intended to prevent abuse of power.

Strategic Issues of the Position of the President 3 Period In the Perspective of State Constitutional Law in the Restriction of Power

The subject of extending the presidential term to three terms is one that all of us are concerned about. In this example, in the contestation of the dynamics of government and politics in Indonesia, the discourse of the desire to change the 1945 Constitution aims to homogenize the discourse views of the interests of power, making this an intriguing subject to research. As a concept of preventing the authoritarian pendulum in a country, it is required to limit the power held by a head of state and head of government, particularly the president. The term of office for presidential candidates in Indonesia is controlled by the country's presidential system of government. Like the current dynamics in the Indonesian government, that dilemmas and conflicts of interest stemming from pragmatic reasons for legal politics in Indonesia appear to want to smoothen the constitution, namely Article 7 of the 1945 Constitution, which has limitedly affirmed the limits of positions held by a president, namely two terms. by using the provisions of the original intense article 37 of the 1945 Constitution to delegate to three terms. In essence, the presidential term restriction is intended to prevent abuse of power.

Uses of Convention History in State Constitutional Law

Uses of Convention History in State Constitutional Law

Property Rights and Legitimate Expectations Under United States Constitutional Law and The European Convention on Human Rights: Abstract Some Comparative Remarks

Property Rights and Legitimate Expectations Under United States Constitutional Law and The European Convention on Human Rights: Abstract Some Comparative Remarks

Regulatory Takings under the United States Constitutional Law

Regulatory Takings under the United States Constitutional Law

The Protection Property under the United States Constitutional Law: From Lochner to the Fifth Amendment and Back Again?

The Protection Property under the United States Constitutional Law: From Lochner to the Fifth Amendment and Back Again?

Information Systems and Management of Political Dynasty in the Constitution of Election in the Country of Indonesia in the Perspective of the State Constitution

An information system is absolutely necessary in making logical decisions so that the policies developed are in accordance with the applicable law. This article discusses political dynasties from state constitutional law and human rights, whether constitutional or unconstitutional. This article uses a normative research method, which examines the law, the state constitution, and the Constitutional Court decisions related to political dynasties in the implementation of general elections. Political dynasties are a familiar thing in organizing general elections; political dynasties certainly reap the pros and cons. Still, as a legal state, Indonesia must also provide legal certainty regarding how the law views political dynasties. Basically, in this study, based on the rule of law and the state constitution, political dynasties are not unconstitutional; political dynasties do not violate the state constitution; with the prohibition on political dynasties, it is an unconstitutional act and violates human rights. The provisions of the Law on Human Rights prohibit the existence of political dynasties that do not prioritize human rights values, which are regulated in the Law on Human Rights; provide legal protection for every citizen has the right to vote and be elected in general elections. And stated firmly that political dynasties are prohibited, because they are not in line with the constitution and also the values of human rights.

МІЖНАРОДНЕ МУНІЦИПАЛЬНЕ ПРАВО ЯК ГАЛУЗЬ МІЖНАРОДНОГО ПУБЛІЧНОГО ПРАВА: ДО ПИТАННЯ ПРО ФОРМУВАННЯ ГАЛУЗІ

The article is devoted to the scientific and theoretical substantiation of the position on the formation of international municipal law as a field of modern international public law. In domestic jurisprudence, the topic is being studied for the first time. The authors connect the emergence of international municipal law with the processes of constitutionalization of international public law and the internationalization of the constitutional legal order of states. These processes were accompanied by the growth of international recognition of the institution of local self-government. First of all, through its international legal regulation and contextualization of topical aspects of the activities of local governments, taking into account their international activities. In particular, through the development and adoption of a number of international multilateral treaties and the preparation at the United Nations level of the draft World Charter of Local Self-Government. In the context of the internationalization of the constitutional legal order of countries in the field of urban law, significant processes of borrowing international legal standards of local selfgovernment by state constitutional law are indicated. Based on the analysis of international practice, a conclusion is made about the compliance of Ukrainian legislation with international standards. At the same time, recommendations are given for its improvement, in particular, for financing local governments, budgetary decentralization, limiting the competence of local state administrations, etc. The formation and development of the architecture of modern public international law, its institutional and structural system is usually associated with its sectoral construction, which is based on the definition of the subject of legal regulation and method of legal regulation. The emergence of a new subject of legal regulation in public international law, as an independent and autonomous legal system, is based on the actualization, emergence, activation, contextualization of cooperation in a new field of interstate cooperation, which in practice is determined by the emergence of a new object of international law. In this case, the methods of international legal regulation in public international law remain constant – either imperative or dispositive. However, today in the formation of new branches of public international law plays an important role trend that emerged during the formation of a new form of globalization – legal, which has such a nomenclature – the constitutionalization of public international law and the internationalization of constitutional order. In general, the national legislation of Ukraine meets world standards, but some legislative norms should be improved. First of all, this concerns the financing of the local state administrations, limiting the competence of local state administrations to the level of control functions and mediation between the local governments, the executive branch and the President. In addition, it makes sense to provide a mechanism for the implementation of the international legal standards for the subjects of Ukrainian local self-government.

KONSEP OTONOMI DAERAH DALAM HUKUM TATA NEGARA ISLAM

This study examines the concept of regional autonomy in Islamic constitutional law about how is the concept of regional autonomy in Islamic State Constitutional Law and how is the autonomy of regional heads in the perspective of Islamic constitutional law. This research is a qualitative research library (Library Research). The data of this study were obtained through the Islamic law/Fiqh research method with a historical approach. After the data has been collected, it is then processed by studying, researching, studying and understanding the concept of regional autonomy in Islamic Constitutional Law referring to the Al-Quran and Hadith and related articels. This study found the following results: (1) The concept of regional autonomy in Islamic constitutional law is practiced in three types of regional government, namely al-imarah al-khashah, al-imarah al-ammah, al-imarah al-istila. (2) The autonomy of the regional head's power in the perspective of fiqh siyasah dusturiyah or Islamic constitutional law is in accordance with the conditions and authority granted by a Khalifah. The Khalifah as head of state gives authority to al-Amir (Head of Region) in the functions of: collecting taxes in the region, managing regional administration and providing services to the people in the region, maintaining security in the region, attracting kharaj and collecting zakat, upholding and disseminating Islam in the region. area, as well as being a prayer priest.

SISTEM PEMERINTAHAN PRESIDENSIAL DI INDONESIA PRESPEKTIF FIQH SIYASAH DUSTURIYAH

This study discusses the review of Islamic Constitutional Law on presidential government systems in Indonesia. This type of research is library research in which materials are collected through books, laws and journals related to research. The method used is a normative legal research method. Theories used are power theory, authority theory, trias politica theory and tanfidziyyah sulthah theory. From the results of the research conducted by the author, it can be concluded that based on the Indonesian constitution namely the 1945 Constitution in Article 4 paragraph (1) the power of the President includes executive, legislative and judicial powers. In a presidential government system the President is not only the head of state but also the head of government. Based on the Sulfah tanfidziyyah review of the power of the head of state in the presidential system in Indonesia, namely the power of the head of state in the presidential government system does not conflict with Islamic governance and Islamic law because in the Fiqh Siyasah Dusturiyah or the Khalifah Islamic State Constitutional Law covers all power, both as head of state, head of state government, legislature, judiciary and head of religion. It's just that presidential power in the Presidential system does not include as head of religion.