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1
Dudaeva, Marina V. « Historical and Political Analysis of the Decentralization Process in Italy ». Russian Journal of Legal Studies (Moscow) 8, no 1 (27 mai 2021) : 65–74. http://dx.doi.org/10.17816/rjls64467.
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The author of the article examines the peculiarities of the Italian political space through a retrospective analysis of that countrys longstanding decentralization process. As a starting point, the author takes the end of the Risorgimento era, during which the national liberation movement of the Italian people united against foreign domination of their fragmented nation. A periodization of the decentralization process is given, indicating its main milestones: 1) the establishment of the Kingdom of Italy (1815 to 1871); 2) the Fascist regime (1922 to 1943); 3) adoption of the Italian Constitution and the Statutes of the Special Regions (1947); 4) regional reform (1970) and; 5) constitutional reform (2001). The key criteria for assessing the degree of decentralization in Italy are considered, including whether the regions have the right to adopt their own laws, initiate legislation at the central level, and participate in international activities. The author concludes that the Italian political elite has succeeded in decentralizing the republic and building a new regional policy based on the principles of subsidiarity. The reforms of the political and legal institutional design were mainly related to the delineation of the spheres of competence between the state and the regions, the consolidation of autonomous status for all regions, the abolition of the government commissioner, and the challenge of regional legislation exclusively by the Constitutional Court, creating the basis for the quasi-federal features of the Italian political and legal system. Thus, it is natural to say that Italy belongs to a special transit form of state structure of the regionalist type, located at the juncture between unitarianism and federalism.
2
VOLCANSEK, MARY L. « Political Power and Judicial Review in Italy ». Comparative Political Studies 26, no 4 (janvier 1994) : 492–509. http://dx.doi.org/10.1177/0010414094026004005.
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This essay traces the development of the power of the Italian Constitutional Court, the political impact of its policies, and its reception by the public and the other institutions of government. The relationship between the Court and Parliament is presented as one characterized by a synchronization of powers, and the Court has demonstrated reluctance to interfere in conflicts among the various branches of the national government. That timidity has not, however, carried over into its treatment of referenda or of national versus regional prerogatives. The Constitutional Court is, according to this analysis, a part of the national governing elite, and its most controversial decisions have been ones safeguarding the interests of that elite. By carefully acting as “quasi-guardians,” the Constitutional Court judges have cemented a solidly positive reputation and nurtured an aura of legitimacy that is rare among Italian political actors.
3
Wulandari, Mona. « Existence and Implication of Land Banks on the Constitutional Court's Decision on Testing of Employment Law Form ». International Journal of Social Science Research and Review 5, no 8 (16 août 2022) : 145–49. http://dx.doi.org/10.47814/ijssrr.v5i8.542.
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The research used in this research process uses type of normative law research. In order to create a constitutional law state, one of prerequisites that must be realized is by complying with the constitution, including obeying the decisions of Constitutional Court, because after all decisions of Constitutional Court are embodiment of constitution. There are several things that must be done in order to create constitutional awareness. One of them is by building a collective awareness of the constitution of all components of the nation, especially between state institutions by realizing that the decision of Constitutional Court are embodiment of spirit of constitution. And also the Government will immediately make improvements to formation of Job Creation Law within a period of two years as mandated by final and binding decision of Constitutional Court. Thus, implementation of the Land Bank function can be carried out properly. Considering that at first the government was very eager to establish this Land Bank institution.
4
Bianco, Giovanni. « CHANGE IN THE ITALIAN CONSTITUTIONAL COURT : BUDGET BALANCING MAY ALSO JUSTIFY AN ILLEGITIMATE RECALCULATION OF PENSIONS ». International Journal of Legal Studies ( IJOLS ) 2, no 2 (29 décembre 2017) : 255–67. http://dx.doi.org/10.5604/01.3001.0012.2317.
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With the decision of October 25, 2017, in Italy the Constitutional Court has finally ruled that the needs of public finance can prevail over the rights of pensioners until an unlawful block of pension revaluation has been remedied. With the introduction of the principle of a balanced budget into the Constitution (art. 81), the foundations are laid to begin to tailor labor policies to the needs of economic and financial elite. The principle is rooted in European legislation that both the EU institutions and the European System of Central Banks (ESCB) are committed to pursue exclusively the objective of price stability (and therefore, as a matter of priority, of a given political system). Only once, without prejudice to this objective, can you pursue the general policies of the Union (such as employment and wage policies). With a balanced budget - constitutionalised in 2012 - the government wanted to experiment - among other things - to what extent it can block the revaluation of pensions and state seniority benefits. At first, the Constitutional Court, in ruling no. 70/2015, ruled against the government and sentenced it to return the sums to retirees inclusive of the revaluation in 2013. In that case, the consultation has considered the constitutional principles of proportionality and adequacy of the pension (art. 36 and 38 Cost.) as taking precedent over a balanced budget (art. 81). The Government reacted: a) returning to pensioners only 2 of the 17 billion Euro taken unlawfully (by means of the so-called Poletti decree); b) sensitizing the Court on finance issues with a bill to highlight the economic consequences of the decisions of the judges in the drafting of judgements and attributing to the government the same decision regarding the manner and timing of implementation of the judicial decisions that generate financial charges onto the government coffers. Perhaps, partly as a result of this moral suasion, the consultative panel has reformulated its approach and, after a few months, the sentence no. 178/2015 formally "condemned" the Government to return to the system of seniority benefits, not from 2013 (ex tunc), but only for the future (ex nunc). The new jurisprudence of the Court has meant that - as the government desired - the principle of the requirements of a balanced budget (art. 81) outweigh the policies that protect workers (Art. 39), resulting in (huge) savings for the government at a figure that is around 35 billion Euro. Finally, with the decision of 25 October 2017, the Court considered the payment of the Poletti bonus sufficient, allowing the government to save about 80% of the subtracted revaluations.
5
Prihandono, Tafta Aji, Sri Kusriyah Kusriyah et Widayati Widayati. « Awareness on Constitutional Rights of Citizens and Form of Protection of Constitutional Rights of Citizens in Indonesia ». Jurnal Daulat Hukum 1, no 4 (23 décembre 2018) : 1003. http://dx.doi.org/10.30659/jdh.v1i4.4145.
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In the Constitution of the Republic of Indonesia of 1945 Article 1 (3) explicitly states that Indonesia is a State of Law. One element that is owned by the state law is the fulfillment of basic human rights as expressed by Friedrich Julius Stahl. Efforts to achieve a constitution that can follow the progress and will meet the basic human rights, the constitution must have a dynamic aspect and were able to capture the phenomenon of historical change, so as to make it as a constitution that is always alive. Only problem is the performance of the Government as the executor of the constitution (executive, legislative and judicial) still do not provide justice and satisfaction for those seeking justice, therefore the necessary awareness of constitutional rights of citizens in Indonesia. Efforts to protect the constitutional rights of Indonesian citizens can be done through the court and non-court lines, and can also via maximize the role of the Constitutional Court to extend its authority. The expansion of the authority of the Constitutional Court may be to accommodate Constitutional Complaint and Constitutional Question.Keywords: Awareness; Constitutional Rights; Form of Protection.
6
Tsebelis, George. « Compromesso astorico : the role of the Senate after the Italian constitutional reform ». Italian Political Science Review/Rivista Italiana di Scienza Politica 47, no 1 (13 septembre 2016) : 87–104. http://dx.doi.org/10.1017/ipo.2016.21.
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The article examines the content of the constitutional amendments with respect to the Senate. While symmetric bicameralism would be abolished with respect to policymaking, it would be preserved and even exacerbated with respect to constitutional revisions. The consequences of the first would be a reduction of the number of institutional veto players, which would lead to the facilitation of policy change, and an increase in the power of the government (who is the agenda setter). The content of the new policies remains unknown, as are the economic consequences of the proposed changes. Constitutional revisions would become more difficult, because the ideological distance between the Chamber of Deputies and Senate would be likely to increase (because of the mode of selection of Senators), while article 138, which specifies the requirements for amendment to the constitution, would remain the same. As a result, the role of the Italian Constitutional Court would also likely increase.
7
Sinaga, Paulus Rudy Calvin, et Anna Erliyana. « Relevansi Teori Oplossing dalam Penanganan Sengketa Terkait Keputusan Pengadaan Barang dan Jasa Pemerintah ». Jurnal Konstitusi 19, no 2 (2 juin 2022) : 431. http://dx.doi.org/10.31078/jk1928.
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The Indonesian State Administrative Court has applied the oplossing theory, where claims related to disputes over the procurement of government goods or services are considered to be merged in the civil realm so that they are assumed to be not authorized to handle the dispute. This research is normative juridical research by comparing the practice of handling cases of government procurement of goods and services in the Indonesian State Administrative Court, the Constitutional Court, and the French Administrative Court. Research shows that there are inconsistencies in the Indonesian state administrative court regarding the interpretation of the oplossing theory after the enactment of Law Number 30 of 2014 concerning Government Administration, while in France, the plaintiff can file a lawsuit in the form of annulment of administrative decisions related to the procurement of government goods and services or a compensation claim. The implication of eliminating the oplossing theory is that a third party can file a claim for compensation against a dispute over the procurement of government goods and services in the state administrative court in accordance with the Constitutional Court Decision Number 22/PUU-XVI/2018 regarding the grace period for filing a lawsuit by a third party.
8
Ahmad Saifulloh, Putra Perdana. « The Obligation of the Constitutional Court of Indonesia to Give Consideration in the Process of Dissolution of Societal Organizations ». Constitutional Review 4, no 1 (31 mai 2018) : 131. http://dx.doi.org/10.31078/consrev416.
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The government efforts to dissolve the societal organizations must be carried out in accordance of stages and processes stipulated in the Law on Societal Organizations. Persuasive efforts must be done first before the imposition of administrative sanctions. Administrative sanctions in the form of warning letters and temporary suspensions of activities need to be done before the Government dissolves the societal organizations after a court decision was obtained from the permanent legal force. The writer considered that the dissolution of societal organizations by the Government was urgent for the present, but the Government before dissolving societal organizations should seek consideration from the Constitutional Court of Indonesia as the guardian, and interpreter of Pancasila. Thus, the Constitutional Court of Indonesia as a neutral judicial institution shall have the authority to consider whether a societal organization will be dissolved.
9
Kozhevnikov, Oleg A., et Irina V. Glazunova. « Protection of the economic basis of local self-government in the decisions of the Constitutional Court of Russia ». Law Enforcement Review 4, no 2 (30 juin 2020) : 73–84. http://dx.doi.org/10.24147/2542-1514.2020.4(2).73-84.
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The subject. The article is devoted to the analysis of decisions of the Constitutional Court of
Russia concerning the economic basis of local government in Russia in order to demonstrate
the special role of its legal positions in ensuring and protecting the economic foundations
of local self-government in the Russian Federation. The subject of the article is legal acts
and decisions of the Constitutional Court of Russia devoted to the economic foundations of
local self-government in Russian Federation.
The aim of the article is to confirm or disprove the following hypothesis. As it seems from
the practice of the Constitutional Court of Russia, the existing system of implementing the
regulatory framework of the economic basis of municipalities in Russia is unsatisfactory,
while the Constitutional Court of Russia, through the development of its legal positions,
smoothes out the negative aspects and sets up legislative and executive authorities to create the necessary conditions for the development of local government and to ensure its
economic and organizational independence. The methodology. The authors apply general scientific methods of comparative, logical and
statistical research, as well as analysis of Russian law enforcement and judicial practice in
the field of local self-government.
The main results, scope of application. Despite the provisions of the European Charter of
Local Government on the right of local governments to possess sufficient own financial resources, the reality shows a very deplorable picture of the formation of the regulatory
framework of the economy of municipalities in Russia. The existence of very heterogeneous
judicial practice, primarily arbitration, makes the situation worse. In this regard, a special
role in protecting the economic foundations of local government is assigned to the Constitutional Court of Russia.
Conclusion. The issues of legal regulation of the economic basis of local government need increased attention of the state and urgently require a deliberate change, primarily in the form
of developing a federal state policy, taking into account the practice already developed by the
Constitutional Court of Russia. It is the highest federal body of constitutional justice that often
acts as the last bastion of protecting the economic potential of local government.
10
Spigno, Irene. « Constitutional Judges and Secession. Lessons from Canada … twenty years later ». Perspectives on Federalism 9, no 3 (1 décembre 2017) : E—105—E—132. http://dx.doi.org/10.1515/pof-2017-0022.
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Abstract In constitutional theory, the referendum is an instrument that allows for the expression of the popular will in government decisions and through which people are asked to vote directly on an issue or policy. Over the last decades, the referendum has been the instrument used by minority groups to claim their independence supported by popular will. This paper examines trends in constitutional jurisprudence on the issue of independence referendums. The birth of this constitutional trend can be found in the 1998 decision by the Supreme Court of Canada in the Reference Re Secession of Quebec. The principles developed therein have been further explored in two recent cases, issued by the Italian Constitutional), and by the Spanish Constitutional Tribunal in the latest decision of the Catalonia saga (Judgment no. 114/2017).
11
Pollicino, Oreste. « From Partial to Full Dialogue with Luxembourg : The Last Cooperative Step of the Italian Constitutional Court ». European Constitutional Law Review 10, no 1 (15 avril 2014) : 143–53. http://dx.doi.org/10.1017/s1574019614001084.
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The year 2013 will be remembered as a very good year for the evolution of the judicial conversation between the Court of Justice and the constitutional courts of the member states. This is true at least with regard to the particular form of judicial cooperation that may be considered the institutional channel of dialogue between the Luxembourg Court and national judges: the preliminary ruling mechanism. In 2013 the French Conseil Constitutionnel for the first time in its history sent a request for a preliminary ruling to the ECJ and the latter answered the first preliminary ruling sought in 2011 by the Spanish Tribunal Constitucional. Moreover, the Italian Corte Costituzionale decided for the first time to raise a preliminary reference to the Luxembourg judges in the context of incidenter proceedings. This represents a second step, following an initial one taken in 2008 in so called direct proceedings. The new judicial path of the Italian Constitutional Court (ICC) is in line with the new season of cooperative constitutionalism in Europe.
12
Morvillo, Marta. « Between Politics and Expertise : An Italian Perspective on Constitutional Law and Scientific Legitimacy ». European Journal of Risk Regulation 7, no 3 (septembre 2016) : 475–84. http://dx.doi.org/10.1017/s1867299x00006024.
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The dialectic between the technically (or scientifically) possible and the legally possible, which is implied in decision-making in conditions of uncertainty, raises crucial issues from a constitutional perspective. In particular, the emergence of a new factor of legitimacy – which could be envisaged as a form of “scientific legitimacy” – can be detected and needs to be integrated within the constitutional discourse.Through an overview of the case law of the Italian Constitutional court, the paper aims at highlighting the possible approaches to the need of a deeper integration of technical and scientific knowledge within the public decision-making processes, in an attempt to strike a balance capable of avoiding the two extremes of scientifically weak decisions on one hand, and of “technical deference” to experts on the other.
13
Nuridahwati, Zuhro. « Karakter Final Putusan Mahkamah Konstitusi Dalam Melaksanakan Kewenangan Sesuai Pasal 24C Ayat (1) Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 ». Jurnal Ilmiah Raad Kertha 3, no 1 (9 juillet 2020) : 105–19. http://dx.doi.org/10.47532/jirk.v3i1.171.
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The Constitutional Court is within the scope of the Judicial Power and occupiesa strategic position in the Indonesian constitutional structure. MK as one of the stateinstitutions that was born from the reformation in 1998. MK as a judicial institution hasa very important and strategic task, said to be the sole interpreter of the Republic ofIndonesia's state constitution. Article 24C paragraph (1), of the 1945 Constitution of theRepublic of Indonesia, the Constitutional Court has the authority to adjudicate at the firstand last level the final decision to review the law against the Constitution, to decide ondisputes over the authority of state institutions whose authority is granted by theConstitution, to decide upon the dissolution of parties politics, and decide upon disputesabout the results of general elections. The results of the study and analysis, the provisionsof the 1945 Constitution of the Republic of Indonesia and Law Number 24 Year 2003,found legal issues that become legal problems faced by the Constitutional Court, arerelated to their position, competence, and form of decisions, which often makes legalcertainty uncertain or absurd, and conflicts norm, it is very interesting to be studied as acentral theme of the dissertation. Understanding the Position, indicating the position anddegree of the Constitutional Court between state institutions and between the SupremeCourt and the Constitutional Court, while competency shows the competency boundarybetween the Constitutional Court and the Supreme Court, which has attributie authority,first and foremost authority, born from the format of the government system and thedistribution of state power . Attributie authority as the first and main center forresponsibility and at the same time the basis of delegating authority in the form of delegatie.
14
Pellegrina, Lucia Dalla, et Nuno Garoupa. « Choosing between the government and the regions : An empirical analysis of the Italian constitutional court decisions ». European Journal of Political Research 52, no 4 (19 novembre 2012) : 558–80. http://dx.doi.org/10.1111/1475-6765.12003.
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Johansyah, Johansyah. « KEDUDUKAN MAHKAMAH KONSTITUSI SEBAGAI LEMBAGA NEGARA BERDASARKAN UNDANG-UNDANG DASAR 1945 ». Solusi 17, no 2 (1 mai 2019) : 94–105. http://dx.doi.org/10.36546/solusi.v17i2.167.
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The Constitutional Court is the executive branch of the judiciary that is independent and separate from other branches of power, namely the government (executive) and legislative institutions. The Constitutional Court as a first and last level judiciary does not have an organizational structure as large as the Supreme Court which is the peak of a judicial system whose structure is vertically and horizontally covers five judicial environments, namely the general court environment, the state administrative court environment, the religious court environment, and military court environment. As an organ of judicial power that operates the judicial function, the Constitutional Court is independent, both structurally and functionally. The functions and authorities of the Constitutional Court based on Law No. 24 of 2003, namely the Constitutional Court has the authority to hear: Test the laws against the Republic of Indonesia 1945 Constitution; Decide on authority disputes between state institutions whose authority is granted by the Republic of Indonesia 1945 Constitution; Decide the dissolution of political parties; Decide disputes about election results; Give a verdict on the opinion of the House of Representatives that the President and / or Vice-President are suspected of violating the law in the form of treason, corruption, bribery, other serious crimes, or despicable acts, or no longer fulfill the conditions as President and or Vice President, as intended in the Republic of Indonesia 1945 Constitution.
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Micael Josviranto. « JURIDICAL REVIEW OF THE AUTHORITY OF THE CONSTITUTIONAL COURT IN RESOLUTION OF GENERAL ELECTION DISPUTES FOR REGIONAL HEAD ». SOSIOEDUKASI : JURNAL ILMIAH ILMU PENDIDIKAN DAN SOSIAL 9, no 2 (21 novembre 2020) : 39–47. http://dx.doi.org/10.36526/sosioedukasi.v9i2.1044.
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purpose of this research is to find out what is the legal basis for the authority of the Constitutional Court in resolving disputes over the results of the General Election of Regional Heads in Indonesia and how the effectiveness of the authority of the Constitutional Court in disputes over Regional Head General Election. The method used in this research is juridical normative, namely, the materials collected by conducting a literature study. The authority of the Constitutional Court in judging at the first and last levels whose decisions are final in deciding disputes regarding general elections, there are several paragraphs that discuss the extent to which the authority of the Constitutional Court in resolving disputes over the General Election of Regional Heads has been contained in Article 157 of Law Number 10 2016 concerning the Second Amendment to Law Number 1 of 2015 concerning Stipulation of Government Regulations in Lieu of Law Number 1 of 2014 concerning the Election of Governors, Regents and Mayors which form the legal basis for the authority of the Constitutional Court in resolving disputes over the results of the General Election in Indonesia.
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Wijayanti, Winda. « Dynamics of the Obligation to Register Birth Certificates as a part of the Right to Issuance Population Documents ». Constitutional Review 2, no 2 (6 février 2017) : 234. http://dx.doi.org/10.31078/consrev224.
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The state is obliged to protect and recognise the legality of a person’s birth. Registration of birth in the form of a birth certificate is proof of one’s origin issued by the competent authorities. However, in practice, the time limit of one year given for such registration has proven a burden to citizens, such that complaint of constitutional damages has been brought before the Constitutional Court of Indonesia. Population administration is regulated under Act Number 23, Number 23 Year 2006 and amended by Act Number 24, Number 24 Year 2013 in accordance with Constitutional Court Decision 18/PUU-XI/2013. In order to take an active role in the registration of births, the government and local governments have to remove the deadline to report the birth of a child, as stipulated by the district court and as an effort to improve state responsibility. This requires that citizens have the "right to be heard" and, in future, there should be an integrated service from the government for the registration of births.
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Santuari, Alceste. « Health care rationing in Italy : right to health vs. budget constraints in a regional-based health system ». Journal of Medical Law and Ethics 7, no 3 (31 décembre 2019) : 259–68. http://dx.doi.org/10.7590/221354020x15815920230942.
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After the enactment of the 2001 Constitutional Reform Act, the Italian health system consists of as many as 21 regional health systems. The central government retains the public task of ensuring that all citizens, regardless of their territorial residence, may access the same universal and equitable health services and provisions.<br/> After the economic crisis of 2007/2008, as has been the case in many other EU MSs, the Italian central government has decreased public expenditure on health care. Not only has such an approach undermined citizens' fundemental right to health. It has also triggered a fierce confrontation between regional governments and the State, which has also been the object of some rulings of the Italian Supreme Court.<br/> Against this background, the paper aims to analyse the impacts that health care rationing has on the organisation of health and care services and on the evolution of social enterprises as health providers.
19
MORATTI, SOFIA. « The Englaro Case : Withdrawal of Treatment from a Patient in a Permanent Vegetative State in Italy ». Cambridge Quarterly of Healthcare Ethics 19, no 3 (28 mai 2010) : 372–80. http://dx.doi.org/10.1017/s0963180110000150.
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The international media recently reported the case of Eluana Englaro, a 38-year-old woman in a permanent vegetative state (PVS) who died in February 2009 following withdrawal of her feeding tube. At the time of her death, she had been unconscious for 17 years. For many years, her father had been seeking permission to allow her to die. His request was rejected by the courts several times on different grounds, until the Italian Supreme Court finally granted it. The case caused considerable political turmoil. The government, the president, the Constitutional Court, and the European Court of Human Rights got involved. This paper gives an account of the history of the case, enriched by personal communications with the people directly involved and a memoir by the father of Eluana.
20
Adnan, Indra Muchlis, Muannif Ridwan, Vivi Arfiani Siregar et Mubarik Mubarik. « Dinamika Negara Hukum dalam Sistem Demokrasi Pancasila di Indonesia ». Jurnal Multidisiplin Madani 2, no 3 (30 mars 2022) : 1121–38. http://dx.doi.org/10.54259/mudima.v2i3.465.
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This research discusses the dynamics of the rule of law in the Pancasila democracy system in Indonesia. This study uses a descriptive qualitative method by presenting various opinions of figures from credible library data. The focus of discussion in this research is related to the dimensions of the rule of law, politics and power which presents political parties and action theory in politic, and the concept of shifting power from a juridical point of view, then politics and power distribution discusses the distribution of power in the Constitution. 1945, the power of the presidential institution, the president and ministers, the power of the Supreme Court (MA), the power of the constitutional court (MK), the power of the Supreme Advisory Council (DPA), and the power of the regional representative council (DPD) and the power of the Supreme Audit Agency (BPK), and also discussed the political dynamics of the past; old order, new order and reform era. At pthe principle of a rule of law is to realize the protection of life for the people against government actions and the recognition and protection of human rights. Because the rule of law concept is rechtstaats, the rule of law, and the constitutional state of Pancasila. Meanwhile, there are three elements of constitutional government; government that is carried out by the public interest, government is carried out according to law based on general provisions, and constitutional government, that is, government that is carried out by the will of the people, not in the form of pressure imposed by the government.
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Arndt, Nina, et Rainer Nickel. « Federalism Revisited : Constitutional Court Strikes Down New Immigration Act For Formal Reasons ». German Law Journal 4, no 2 (1 février 2003) : 71–89. http://dx.doi.org/10.1017/s2071832200015777.
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On 18 December 2002, one of the major legislative projects of the Schröder Government during its first term of office from 1998 to 2002 failed when the Federal Constitutional Court delivered its judgement in the Immigration Act case. In a split decision, the Court declared the new Immigration Act, the “Gesetz zur Steuerung und Begrenzung der Zuwanderung“ (Act on the Management and Limitation of Immigration) void for formal reasons: It found that the Act did not receive a valid majority vote in the Bundesrat, the chamber of the 16 German states (Länder) that form the Republic. The Court did not have to deal with any questions related to the content of the Act. It discussed only the constitutionality of the legislative procedure.
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Hennigar, Matthew A. « Expanding the ‘Dialogue’ Debate : Federal Government Responses to Lower Court Charter Decisions ». Canadian Journal of Political Science 37, no 1 (mars 2004) : 3–21. http://dx.doi.org/10.1017/s0008423904040041.
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The inter–institutional dynamics between courts and elected governments under the Canadian Charter of Rights and Freedoms have recently, and widely, been characterized as a "dialogue" over constitutional meaning. This article seeks to expand the systematic analysis of "dialogue" to lower courts of appeal, using Canadian federal government responses as a case study. In the process, the article clarifies the hotly debated operational definition of this metaphor, and develops two methodological innovations to provide a comprehensive measure of dialogue. The article's findings suggest that there is more dialogue with lower courts than with the Supreme Court of Canada. However, the evidence indicates that dialogue in the form of government appeals to higher courts–which explicitly signal the government's disagreement with the lower court–is as prevalent as legislative sequels, and the dominant form following judicial amendment.
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Loughland, Amelia. « Taking Process-Based Theory Seriously : Could ‘Discrete and Insular Minorities’ Be Protected Under the Australian Constitution ? » Federal Law Review 48, no 3 (1 juin 2020) : 324–49. http://dx.doi.org/10.1177/0067205x20927813.
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The High Court is committed to protecting the substantive rights necessary for the effective functioning of the constitutionally entrenched system of representative and responsible government. This is consistent with a ‘representation-reinforcing’ approach to constitutional review as advocated by John Hart Ely in the United States, in which judicial intervention is limited to protecting the ordinary political processes established by the Constitution rather than adjudicating on its outcomes. While the High Court has demonstrated an Elyian commitment to keeping open the channels of political change, it has not engaged with the protection of minority rights or equality concerns more broadly which were a key element of process-based theory. In this article, I argue that the judicial protection of minority rights is a necessary and desirable corollary of the constitutional entrenchment of representative government in the Australian Constitution. I explore how this could arise through either a freestanding guarantee of equality or in a weaker form by inflecting other areas of constitutional practice. Ultimately, I acknowledge that while the High Court’s current interpretive approach may not support a broad protection of equality, its process-based protection of representative government provides an available means to recognise minority rights under the Australian Constitution.
24
Perona, Riccardo. « Between International Integration and National Autonomy in Favour of Concrete Cases : The Italian Constitutional Court’s ‘Internationally Oriented Automatism’s Prohibition’ Doctrine ». Revue générale de droit 49 (15 janvier 2019) : 237–54. http://dx.doi.org/10.7202/1055491ar.
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This paper deals with a peculiar doctrine of the Italian Constitutional Court, the “prohibition of legislative automatisms,” which is used, in some judgments, in an internationally oriented form. My argument is that this doctrine can be seen as an effective legal and constitutional instrument operating in the “multi-level” scenario and namely in the framework of international systems and treaties of human rights protection. Indeed, it provides a good degree of flexibility and a good balancing point between international integration and national autonomy in light of the need to reach an adequate and “fair” solution in the concrete case and, therefore, in favour of the enhancement of human rights protection at the practical level.
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Minnerop, Petra. « The first German climate case ». Environmental Law Review 22, no 3 (septembre 2020) : 215–26. http://dx.doi.org/10.1177/1461452920948626.
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This article explains the first German climate case filed against the Federal Government in the Berlin Administrative Court in 2018 and decided in October 2019. The article identifies and examines the key elements of the decision of the Berlin Court and it places the legal issues of the case within the relevant framework of German administrative court procedure law, administrative law and constitutional law. The case evolved around the legally binding force of a cabinet decision of the Federal Government which laid down the German greenhouse gas emissons reduction target for 2020. Despite the fact that the application was dismissed for lack of standing, some important legal developments can be derived from the judgment, especially in relation to justiciability of the case and the state’s duty to protect fundamental rights under the German Basic Law (Grundgesetz) in the climate change context. Just after the judgment was delivered, the German Federal Parliament (Bundestag) adopted the first Federal Climate Protection Act in November 2019 and thus defined the state’s new climate targets in statutory form. This changed the legal landscape and claimants consequently abstained from appealing the judgment. However, the German Constitutional Court now has the opportunity to clarify further some of the legal issues that arose in this first German climate case from applying ‘traditional’ legal concepts to the challenge of climate change, if it decides to hear the constitutional complaint which was filed in 2020 against the Federal Climate Protection Act.
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Basedow, Jürgen, Jan Dietze, Stefan Griller, Manuel Kellerbauer, Marcus Klamert, Luigi Malferrari, Tibor Scharf, Dominik Schnichels, Daniel Thym et Jonathan Tomkin. « European integration : Quo vadis ? A critical commentary on the PSPP judgment of the German Federal Constitutional Court of May 5, 2020 ». International Journal of Constitutional Law 19, no 1 (1 janvier 2021) : 188–207. http://dx.doi.org/10.1093/icon/moab017.
Texte intégralRésumé :
Abstract In its judgment of May 5, 2020, the Second Senate of the German Constitutional Court qualified for the first time a judgment of the Court of Justice of the European Union (CJEU)—C-493/17 Weiss—as “arbitrary from an objective perspective” and declared the underlying European Central Bank (ECB) decisions regarding the Public Sector Purchase Programme (PSPP) to be ultra vires. It requested the German Government and the German Parliament to take steps against the PSPP in its current form and to ensure that the ECB conducts a proportionality assessment of its PSPP. The judgment also prohibits the German Central Bank from participating, after a grace period of three months, in the implementation and execution of the ECB decisions at issue, unless the ECB assesses and substantiates that the measures provided for in its decisions satisfy the principle of proportionality. The present article, which was written by academics, lawyers, and civil servants from five countries, casts a critical eye on the judgment of the German Constitutional Court. It identifies significant shortcomings from both a German constitutional and a European Union perspective.
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Tanjung, Muhammad Anwar Tanjung, Retno Saraswati et Lita Tyesta A.L.W. « Constitutional Democracy and National Legal Instruments in Resolving Regional Election Disputes ». Lex Publica 7, no 1 (30 janvier 2020) : 95–109. http://dx.doi.org/10.58829/lp.7.1.2020.95-109.
Texte intégralRésumé :
Through Law Number 32 of 2004 concerning Regional Government, direct regional head elections (Pemilihan Umum Kepala Daerah/Pilkada) could finally be realized. In accordance with the mandate of Article 24C paragraph (1) of the 1945 Constitution, it stipulates that one of the powers of the Constitutional Court is to decide disputes over election results, which means that this includes post-conflict local election disputes. In this context, the Constitutional Court performs its role to maintain the constitutional democracy adopted in Indonesian legal system fo resolve election disputes. Upholding the constitution is a form of protecting the constitutional rights of citizens and is a consequence of the adherence to the notion of constitutionalism that the 1945 Constitution. In this context, the constitution becomes a living constitution in the life of the nation and state. Constitutional values and norms will always be alive in the sense that they are constantly developing and enriched with new values and systems based on the practice of the constitution itself and real experiences in everyday life. To maintain the election process in order to achieve the expected results, it cannot rely on only one or two institutions. It requires the cooperation of all state organs, including KPU, Bawaslu, DKPP, police, prosecutors, courts, and the Constitutional Court. All these state organs must work together to make the local elections a success to maintain the sovereignty of the people.
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Stojadinovic, Sonja. « Political Influence on the Constitutional Court in the Republic of Macedonia : Reflections through the Dissenting Opinions in the Period of 2012-2015 ». Constitutional Review 5, no 1 (31 mai 2019) : 069. http://dx.doi.org/10.31078/consrev513.
Texte intégralRésumé :
The demo Christian political party VMRO-DPMNE had a long period of ruling of the Republic of Macedonia, (2006-2016). During that period many cases of political pressure on the state institutions have occurred. The Constitutional Court wasn’t an excepted of that political pressure. Starting from the process of appointment of new judges, through the shocking decisions upon official citizens’ complaints and human rights appeals, to a complete reflection of the political interference and pressure through the dissenting opinions written and published by some constitutional judges. The former government has used all the tools, legal and non-legal, to put under control the Constitutional Court. If we put aside the political interference into the appointment of new and incompetent judges, one of the most used tools as a form of resistance was the dissenting opinion. This legal tool is present in the Book of Rules of the Constitutional Court of the Republic of Macedonia, but also in the legal systems in the Eastern Europe, Germany, Spain, Greece and all other states whose legal systems are created by the German legal system. It gives space and chance for one or several constitutional judges to express disagreement upon a decision brought by the majority in the court. This tool was frequently used by several judges from the Constitutional Court in the Republic Macedonia in the given period through which we can see strong political influence on their work. Therefore, the research questions are as follows: What were the “models” of political influence that were used on the Constitutional Court during the period of 2012-2015? How were they used and what are the dissenting opinions reflecting? To answer the said questions, the model of qualitative research will be used together with several dissenting opinions as case studies. The aim of this approach is to explain the different aspects of political influence on the work of the Constitutional Court within the given period. The findings of this research can be used for further development of the interest for researching of the work and role of the Constitutional Court in the Republic of Macedonia.
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Vomáčka, Vojtěch, et Jana Tkáčiková. « Agricultural Issues and the Czech Constitution ». Journal of Agricultural and Environmental Law = Agrár- és Környezetjog 17, no 32 (28 mai 2022) : 157–71. http://dx.doi.org/10.21029/jael.2022.32.157.
Texte intégralRésumé :
The article deals with the regulation of agricultural activities in the constitutional order of the Czech Republic, which consists mainly of the Constitution and the Charter of Fundamental Rights and Freedoms. The authors focus on two basic areas of regulation that often complement each other in practice: the protection of property rights and entrepreneurship and the protection of the environment. The protection of land as part of the environment is analysed from the perspective of the constitutionally enshrined obligations of the state and also as part of the right to self-government, which is manifested in particular in the process of land-use planning. The article mainly reflects the case law of the Constitutional Court and, marginally, of the Supreme Administrative Court. The authors conclude that the individual requirements of constitutional law are interconnected and form a general but very fundamental framework for the performance of agricultural activities.
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Spiller, Pablo T., et Richard G. Vanden Bergh. « Toward A Positive Theory of State Supreme Court Decision Making ». Business and Politics 5, no 01 (avril 2003) : 7–43. http://dx.doi.org/10.2202/1469-3569.1061.
Texte intégralRésumé :
State Supreme Courts have grown in importance during the last thirty years in the formation of public policy. Their judgements determine many aspects of constitutional law, tort reform, judicial selection, and campaign finance reform, among others. A vast body of literature has been developed that analyzes State Supreme Court decision making, which emphasizes the conditioning effects of the legal and institutional environment. This article expands on this previous work by incorporating the interaction of the judiciary with other government institutions, and applies the Positive Political Theory approach to law and legal institutions to the State Supreme Court. In addition, the neo-institutionalist literature of the selection process is incorporated to defend a systematic approach towards decision making. Towards that end, this article explores how judicial decisions are conditioned by institutional rules, resulting in a formal modeling of how the State Supreme Courts interact with political actors to form constitutional interpretation. This model includes the judicial selection process'retention or competitive reelection—and is extended to constitutional amendment rules, explaining how these two interact rather than acting independently. Finally, the hypothesis is tested that when State Supreme Court judges face retention elections and political preferences are homogeneous, the probability increases of observing constitutional amendment prosposals.
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Frumarová, Kateřina. « Defending against crisis measures of Czech government in connection with COVID-19 pandemic ». Institutiones Administrationis 1, no 2 (17 novembre 2021) : 4–15. http://dx.doi.org/10.54201/iajas.v1i2.18.
Texte intégralRésumé :
The COVID-19 pandemic required a number of emergency measures in the Czech Republic, which included crisis measures of the Czech government. These measures have often signifi cantly affected a number of constitutionally guaranteed rights and freedoms of individuals and legal entities, who did not always agree with the government measures, especially with their content, scope and duration. The article therefore deals with the basic question of whether these persons (affected by the government crisis measures) can or could defend themselves directly against these measures, and if so, by what legal means and under what conditions? The author also addresses the question of what the legal form of these government crisis measures is. Determining the legal form of a certain activity is the primary precondition for us to be able to correctly determine the appropriate means of defence. Unfortunately, the law does not regulate this subject matter. It is therefore necessary to rely primarily on the findings of legal science and relevant case law (especially of the Constitutional Court of the Czech Republic and the Supreme Administrative Court).
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Frumarová, Kateřina. « Defending against crisis measures of Czech government in connection with COVID-19 pandemic ». Institutiones Administrationis 1, no 2 (17 novembre 2021) : 4–15. http://dx.doi.org/10.54201/iajas.v1i2.18.
Texte intégralRésumé :
The COVID-19 pandemic required a number of emergency measures in the Czech Republic, which included crisis measures of the Czech government. These measures have often signifi cantly affected a number of constitutionally guaranteed rights and freedoms of individuals and legal entities, who did not always agree with the government measures, especially with their content, scope and duration. The article therefore deals with the basic question of whether these persons (affected by the government crisis measures) can or could defend themselves directly against these measures, and if so, by what legal means and under what conditions? The author also addresses the question of what the legal form of these government crisis measures is. Determining the legal form of a certain activity is the primary precondition for us to be able to correctly determine the appropriate means of defence. Unfortunately, the law does not regulate this subject matter. It is therefore necessary to rely primarily on the findings of legal science and relevant case law (especially of the Constitutional Court of the Czech Republic and the Supreme Administrative Court).
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Krisdanar, Vino Devanta Anjas. « Menggagas Constitutional Complaint Dalam Memproteksi Hak Konstitusional Masyarakat Mengenai Kehidupan dan Kebebasan Beragama Di Indonesia ». Jurnal Konstitusi 7, no 3 (20 mai 2016) : 185. http://dx.doi.org/10.31078/jk737.
Texte intégralRésumé :
Social needed of Indonesia people about Constitutional Complaint is urgent and must be held as an effort to protect constitutional rights of Indonesian people itself. The application of a concept without adaptation of new system to original system will make disorder the original system that has been used in Indonesia Law System. No many changes in adaptation of Constitutional Complaint to law system of Indonesia. The effort to protect constitutional rights of Indonesian people in life and freedom of religion must be selected carefully. Government has a duty to protect the society form deviate conviction that indicated can destroy the peace of society or hurt the other religion. For that case, Constitutional Complaint can’t be used as a mechanism to protect the deviate conviction for the reason to protect the life and freedom of religion. The mechanism of Constitutional Complaint as an authority of Constitutional Court first must held the socialization to all Indonesian people in order to the closeness between Indonesia people and Constitution of Indonesia.
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McCorkindale, Christopher, et Janet L. Hiebert. « Vetting Bills in the Scottish Parliament for Legislative Competence ». Edinburgh Law Review 21, no 3 (septembre 2017) : 319–51. http://dx.doi.org/10.3366/elr.2017.0433.
Texte intégralRésumé :
In this article, Christopher McCorkindale and Janet Hiebert present the first empirical examination of the process by which bills in the Scottish Parliament undergo vetting for legislative competence. Based on a series of interviews with officials in the Scottish Government, Scottish Parliament and UK Government the paper makes a two-fold argument. First, that – despite the susceptibility of Acts of the Scottish Parliament to strong-form judicial review – the statutory requirement that the responsible minister and the Presiding Officer report to parliament on the competence of every bill, and the discretion of the Scottish and UK Government Law Officers to refer any bill to the Supreme Court before Royal Assent, align the devolution scheme with an emerging family of systems that favour legislative to judicial constitutional review. Second, that the deference shown by political actors to the advice of officials on questions of competence at each stage supplants legislative review – and its aspiration to engender a new culture of constitutional engagement – with a more closed form of bureaucratic review.
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Muslim, Nazri, Osman Md Rasip, Khairul Hamimah Mohammad Jodi, Abdullah Ibrahim et Otong Rosadi. « The Application of the Constitutional Convention in Malaysia ». Journal of Politics and Law 13, no 2 (25 mai 2020) : 155. http://dx.doi.org/10.5539/jpl.v13n2p155.
Texte intégralRésumé :
In Malaysia, there is no one institution that can outdo the supremacy of the Federal Constitution. Even the three government bodies that refer to the power separation doctrine which is the legislative, judiciary and executive bodies even the Yang di-Pertuan Agong are under this Federal Constitution. The constitution can be divided into two, written and non-written constitution. The written constitution is the form of constitution that is gathered and arranged in one document. The non-written counterpart encompasses all of the constitutional principles not compiled in one document such as the law endorsed by the Parliament and the verdicts of the court such as in the United Kingdom. Other than the constitution, there are certain practices that are thought to be part of the principles of the constitution. This is known as the Constitutional Convention or the customary practice of the Constitution. Constitutional convention is a non-legislative practice and it is similar to the political ethics and not enforced in court. Although it seems trivial, it is important for this practice to be complied with, otherwise it is difficult for the constitution to work successfully as the constitutional convention cannot be brought to court and forced to be obeyed. Thus, the discussion of this article rests on the constitutional convention in terms of the social contract, the appointment of the Prime Minister, the appointment of the country’s main positions and collective responsibility.
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von Gall, Caroline. « Präsident, Regierung und Staatsrat – Die einfachgesetzliche Umsetzung der russischen Verfassungsreform ». osteuropa recht 67, no 1 (2021) : 41–57. http://dx.doi.org/10.5771/0030-6444-2021-1-41.
Texte intégralRésumé :
The article discusses the 2020 Russian constitutional reform and its implementation by legal amendments to many laws of the Russian Federation. The article focuses on the amendments to the new Law on the State Council and on the changes to the Law on the Government and the relationships of these institutions to the Russian President. The 1993 Russian constitution already gave extensive powers to the Federal President and a strong position within the power structure. The federal laws and jurisprudence of the Constitutional Court in force until 2020 further strengthened the powers of the president. That stood in contrast to a liberal interpretation of the constitution in the light of its basic principles laid down in the first section, in particular the principles of democracy and separation of powers. By the 2020 constitutional amendments, the discrepancy between the norms of the constitution on the president and the federal organs and the constitutional reality in form of federal laws with respect to the relationship between the President and the government is getting smaller. However, the constitutional reform also left open questions. The amendments to the laws partially answer these questions and again strengthen the powers of the president.
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Mukti Setiyawan, Wahyu Beny, Hafid Zakariya et Delia Wahtikasari. « Perlindungan Data Konsumen Transaksi Online Melalui Penerapan Advance Data Protection System ». Wajah Hukum 4, no 1 (24 avril 2020) : 1. http://dx.doi.org/10.33087/wjh.v4i1.179.
Texte intégralRésumé :
The concept of a welfare state is the basis for the position and function of government (bestuurfunctie) in modern countries. The application of the law that is obeyed and followed will lead to law and order which maximize the potential of the community. Furthermore, in accordance with the objectives of the state set out in the fourth paragraph of the opening of the 1945 Constitution of the Republic of Indonesia that one of the objectives of the state is to protect the entire Indonesian nation and to advance the general welfare. By the establishment of the country’s goals in the fourth paragraph of the 1945 Constitution of the Republic of Indonesia, the answer is that in fact Indonesia has tried to create a welfare state. The main key in the welfare state is regarding the guarantee of people’s welfare given by the State. Basically, the regulation concerning the right to privacy of personal data is a manifestation of the recognition and protection of basic human rights. Therefore, the drafting of the Personal Data Protection Bill has a strong philosophical foundation and can be accounted for. Decision of the Constitutional Court Number 006 / PUU-I / 2003 further emphasized that the regulation of Personal Data Protection must be in the form of a law. In the Constitutional Court Decision, among others, it was stated that the provisions concerning human rights must be in the form of laws. As a form of the state present to protect as well as the welfare of its people, the government as the highest authority as well as those who run the government is obliged to carry out efforts that are felt needed. One way that the government can do to answer and minimize the problems faced is by implementing the Advance Data Protection System as a form of protection.
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Putra Laksana, I. Putu Dedy. « Pengawasan Represif Pemerintah Pusat dalam Pembentukan Peraturan Daerah ». Acta Comitas 4, no 1 (30 avril 2019) : 119. http://dx.doi.org/10.24843/ac.2019.v04.i01.p11.
Texte intégralRésumé :
Constitutional Court Verdict Number 56 / PUU-XIV / 2016 have the potential to cause juridical implications in terms of carrying out control of the Regional Government. As for the purpose of this study is to analyze and find the ideal form related to the supervision of the Central Government in the formation of Regional Regulations after the issuance of the Constitutional Court Verdict Number 56 / PUU-XIV / 2016. The type of research used in this study is normative legal research. As for the implications after the issuance of the Constitutional Court Verdict Number 137 / PUU-XIV / 2016 on Central Government control in the formation of Regional Regulations namely; Contradictory to the Principles of the Unitary State, the Central Government Only has the Authority to Implement Preventive, Regional Regulations Can Only Be Applied for Judicial Review to the Supreme Court, Inhibit Central Government Policy on Deregulation, and Not in accordance with the Good Governance Principles. Whereas the conclusion is the central government can issue recommendations or recommendations to the regional government to immediately make an amendment to the regulation that is considered contrary to the provisions of the legislation higher law, public interest and decency, but if in a state of urgency the Central Government can become a defendant for judicial review of that Regional Regulation.
Putusan Mahkamah Konstitusi Nomor 56/PUU-XIV/2016 berpotensi menimbulkan implikasi yuridis terutama dalam hal pengawasan pembentukan Peraturan Daerah. Adapun tujuan studi ini adalah untuk menganalisis dan menemukan bentuk yang ideal terkait pengawasan Pemerintah Pusat dalam pembentukan Peraturan Daerah pasca diterbitkannya Putusan Mahkamah Konstitusi Nomor 56/PUU-XIV/2016. Jenis penelitian yang digunakan dalam penelitian ini adalah penelitian hukum normatif. Adapun impilikasi pasca diterbitkannya Putusan Mahkamah Konstitusi Nomor 137/PUU-XIV/2016 terhadap pengawasan Pemerintah Pusat dalam pembentukan Peraturan Daerah yakni; Bertentangan dengan Prinsip Negara Kesatuan, Pemerintah Pusat Hanya Berwenang Melaksanakan Pengawasan Preventif, Perda Hanya Dapat Dimohonkan Uji Materiil/Judicial Review Kepada Mahkamah Agung, Menghambat Kebijakan Pemerintah Pusat Tentang Deregulasi, dan Tidak Mencerminkan Prinsip Good Governance. Pemerintah pusat dapat menerbitkan anjuran atau rekomendasi kepada Pemerintah Daerah untuk segera mengadakan perubahan terhadap Perda yang dianggap bertentangan dengan ketentuan Peraturan Perundang-undangan yang lebih tinggi, kepentingan umum, dan kesusilaan, namun apabila dalam keadaan mendesak Pemerintah Pusat dapat menjadi Pemohon uji materiil terhadap Perda tersebut.
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Ram Mohan, M. P., et Shashi Kant Yadav. « The Oil and Gas Sector in India : Balancing Business Policies and Public Interest by the Supreme Court of India ». Global Energy Law and Sustainability 2, no 1 (février 2021) : 1–21. http://dx.doi.org/10.3366/gels.2021.0045.
Texte intégralRésumé :
Indian authorities have formulated and implemented several policies for exploration, production, refining, transportation, and distribution of its Oil & Gas (O&G) resources. With respect to governance of O&G industry, though, the Indian Constitution envisions larger role of Central government, however, the legislative power, over O&G resources, has been in contention between Centre and States over the past seven decades. Moreover, the legislative power of the central government over O&G resources is subject to ‘public interest’ ensuring that the resources are regulated for common good. The interaction between business policies and public interest, and law-making power between Centre and States have been subject to the Supreme Court's (Court's) review covering the constitutional aspects of O&G sector. These constitutional decisions determined the energy progression in India, especially understanding the ‘shape and form’ of energy justice in India. The paper analyses the role of the Supreme Court of India in balancing public interest and business policies through mapping of all the constitutional cases and also important administrative matters, consecutively laying down the foundation of distributive energy justice in India.
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Sugiharto, Imawan, et Imam Asmarudin. « The Revocation of Corruptors’ Political Rights in Indonesian Legal System ». International Journal of Engineering & ; Technology 7, no 3.21 (8 août 2018) : 491. http://dx.doi.org/10.14419/ijet.v7i3.21.17220.
Texte intégralRésumé :
The Indonesian government experiences constant shocks as some state actors at central and regional levels, either of executive, legislative or judicative bodies, are adjudicated for corruption cases. As it is considered as an extraordinary crime, the Corruption Eradication Commission (Komisi Pemberantasan Korupsi or KPK) made a legal breakthrough by imposing punishment in addition to principal punishment for a deterrent effect. The said additional punishment is in the form of revocation of corruptors political rights as conducted by Criminal Corruption Judge and confirmed by Decision of the Supreme Court of the Republic of Indonesia. However, this decision creates a polemic because of the existence of Decision of Constitutional Court of the Republic of Indonesia which cannot annul punishment in the form of revocation of citizens political rights, for it is considered contradictory to the 1945 Constitution of the Republic of Indonesia. There is an overlapping between the Decision of the Supreme Court of the Republic of Indonesia with the Decision of the Constitutional Court of the Republic of Indonesia stating that such revocation of political rights violates the human rights. Our contention is that overlapping authorities and impacts of revocation of political rights require an additional legal instrument. This is important to ensure the mechanism of the revocation aligns with the human rights and exhibits a progressive legal movement in eradicating corruption.
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Wittreck, Fabian. « German Judicial Self-Government — Institutions and Constraints ». German Law Journal 19, no 7 (1 décembre 2018) : 1931–50. http://dx.doi.org/10.1017/s2071832200023282.
Texte intégralRésumé :
AbstractTypically, Germany is portrayed as apersistent objectorto Judicial Self-Government in any form. The present paper will demonstrate that this position is untenable: Actually, the German judiciary disposes of a differentiated system of institutions of self-government. The effects of these institutional settings on core values like independence and accountability proves to be mixed at best, however. Furthermore, there are practically no proponents of a stronger version of self-government to be reckoned with. Indeed, the Italian-style model of self-government or the visions of the CCJE are basically contrary to the prevailing German understanding of democratic legitimacy and separation of powers; moreover, the long lasting recruiting pattern of the German judiciary will act as a powerful obstacle. Ultimately, even the introduction of a strong self-government via constitutional amendment remains an open question.
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Nizammudin, Nizammudin. « HAK MENGUASAI NEGARA DALAM SISTEM TATA KELOLA MINYAK DAN GAS BUMI : ANALISIS PUTUSAN MAHKAMAH KONSTITUSI NOMOR 36/PUU-X/2012 / The State Control Rights In Oil And Gas Management System : The Analysis Of Constitutional Decision No 36/PUU-X/2012 ». Jurnal Hukum dan Peradilan 5, no 3 (29 novembre 2016) : 407. http://dx.doi.org/10.25216/jhp.5.3.2016.407-430.
Texte intégralRésumé :
Putusan Mahkamah Konstitusi Nomor 36/PUU-X/2012 tentang judicial review UU No. 22 Tahun 2001 tentang Minyak dan Gas Bumi telah menimbulkan perdebatan publik tentang sistem tata kelola minyak dan gas bumi di Indonesia. Adapun hasil yang ditemukan dalam penelitian ini yaitu, Pertama, konsep “hak menguasai negara” dalam Pasal 33 UUD 1945 secara filosofis berangkat dari konstruksi Pancasila yang memberikan kekuasaan kepada negara untuk campur tangan dalam pengelolaan sumber daya alam demi mewujudkan sebesar-besarnya kemakmuran rakyat, namun pada saat yang sama tetap memberikan peluang bagi kepemilikan perdata sepanjang tidak mendegradasi peran negara dalam pengambilan keputusan dan penentuan kebijakan. Kedua, Putusan Mahkamah Konstitusi Nomor 36/PUU-X/2012 tidak membatasi kewenangan Pemerintah dan DPR untuk membentuk badan pengelola migas tertentu sejauh tidak bertentangan dengan opsi yang terdapat dalam pertimbangan hukum MK, yakni BUMN atau Pemerintah. Terminologi “Pemerintah” dalam pertimbangan hukum MK memiliki makna yang jauh lebih luas dan tak harus dibatasi pada Kementerian ESDM, namun mencakup pula BUMN atau badan independen yang mungkin dibentuk oleh pemerintah berdasarkan peraturan perundang-undangan.The Constitutional Court Decision No. 36 / PUU-X / 2012 concerning the unconstitutionality of BP Migas in Law No. 22 of 2001 on Oil and Gas has provoked public debate about the management systems of Indonesian oil and gas. This study focuses on the following questions: First, what the meaning and the concept of the state control rights of oil and gas under the 1945 Constitution of The Republic of Indonesia?; Second, what what are the legal consequences of the Constitutional Court Decision No. 36/PUU-X/2012 on the national oil and gas management policy?. The results of the study shows the following conclusions. First, the concept of state’s rights in Article 33 of the 1945 Constitution of the Republic of Indonesia philosophically derived from the construction of Pancasila which empowers the state to involve in the management of natural resources in order to provide the prosperity of the people, but at the same time providing opportunities for private ownership as far as not to degrade the state's role in determining the decision-making and policy-making. Secondly, the Constitutional Court Decision No. 36/PUU-X/2012 does not limit the authority of the Government and the Parliament to form any oil and gas administrative body to the extent not contrary to the options proposed by the Constitutional Court, i.e. the state-owned enterprises or the government. The term ‘government’ in the legal consideration of the Constitutional Court has a much broader meaning and should not be limited to the Ministry of Energy, but also includes the SOE itself or an independent agency that may be established by the government based on the law.
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Yuswanto, Yuswanto, et M. Yasin Al Arif. « Diskursus Pembatalan Peraturan Daerah Pasca Putusan MK No. 137/PUU-XIII/2015 dan No. 56/PUU-XIV/2016 ». Jurnal Konstitusi 15, no 4 (15 janvier 2019) : 710. http://dx.doi.org/10.31078/jk1542.
Texte intégralRésumé :
Penelitian ini bertujuan untuk menganalisis diskursus pembatalan Perda pasca dikeluarkannya putusan MK No. 137/PUU-XIII/2015 dan No. 56/PUU-XIV/2016 atas pengujian UU No. 23 Tahun 2014 terhadap UUD 1945 yang dibatasi dalam dua rumusan masalah. Pertama, bagaimana implementasi pengujian Perda pasca Putusan MK No. 137/PUU-XIII/2015 dan No. 56/PUU-XIV/2016?. Kedua, apakah dampak putusan MK No. 137/PUU-XIII/2015 dan No. 56/PUU-XIV/2016 terhadap perkembangan hukum pemerintah daerah? Penelitian ini merupakan penelitian normatif dengan menggunakan pendekatan perundang-undangan (statute approach) dan pendekatan kasus (case approach). Data yang digunakan adalah data sekunder yang berupa bahan hukum primer, bahan hukum sekunder dan bahan hukum tersier. Hasil penelitian menunjukkan bahwa: pertama, pasca putusan MK pengujian Perda hanya dilakukan oleh sebuah lembaga yudisial melalui judicial review di Mahkamah Agung. Kedua, terdapat dua dampak penting atas dikeluarkannya putusan MK, pertama, dengan dibatalkannya Pasal 251 UU No. 23 Tahun 2014 maka hal ini mengakhiri dualisme pengujian Perda, karena Menteri tidak dapat lagi melakukan executive review. Kedua, putusan MK o. 137/PUU-XIII/2015 dan No. 56/PUU-XIV/2016 tidak menghapuskan pengawasan Pusat terhadap Perda karena masih dapat dilakukan pengawasan preventif melalui executive preview.This study aimed to analyze the discourse of cancellation after the issuance of local regulations following the Constitutional Court decision No. 137/PUU-XIII/2015 and No. 56/PUU-XIV/2016 on judicial review of Law No. 23 2014 towards the 1945 Constitution which are restricted in two formulation of the problem. First, how is the implementation of a post-test Constitutional Court Regulation No. 137/PUU-XIII/2015 and No. 56/PUU-XIV/2016? Second, what are the effects of the Constitutional Court decision No. 137/PUU-XIII/2015 and No. 56/PUU-XIV/2016 on the development of the local government law? This study is a normative with statute approach and case approach. The data used was secondary data in the form of primary, secondary, and tertiary legal materials. The results showed that: firstly, the following decision of the Constitutional Court about regional regulations review can only be conducted by a judicial body through a judicial review in the Supreme Court. Secondly, there are two important effects on the issuance of the decision of the Constitutional Court, first, by the cancellation of Article 251 of Law No. 23 year 2014 then the duality of local regulation testing is ended, because the Minister can no longer perform executive review. Second, the decision of the Constitutional Court No. 137/PUU-XIII/2015 and No. 56/PUU-XIV/2016 does not abolish the supervision of the Center Government because they do preventive supervision through executive preview.
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Ambarwati, Sinta Devi, Sudarsono Sudarsono et Shinta Hadiyantina. « Dualism of Authority to Review Regional Regulations for Regional Taxes and Levies in Indonesia ». International Journal of Social Science Research and Review 5, no 7 (18 juillet 2022) : 315–28. http://dx.doi.org/10.47814/ijssrr.v5i7.482.
Texte intégralRésumé :
In Indonesia, regional regulation review, particularly regional regulations for taxes and regional levies, has entered a new phase following the passage of Law No. 1 of 2022 about Financial Relations between Central and Regional Governments. In accordance with the provisions of Article 245 of Law No. 23 of 2014 on Regional Government, the regional regulation of regional taxes and levies is one of the regional regulations that must first receive central government approval before being promulgated through a preventive monitoring mechanism while it is still in draft form. This provision is in accordance with the Constitutional Court Decision Number 137/PUU-XIII/2015 and the Constitutional Court Decision Number 56/PUU-XIV/2016 which have eliminated the authority of the central government to be able to carry out repressive supervision, and only allow the application of preventive controls. But then again, following the enactment of Law No. 1 of 2022, the provisions of Article 245 of Law No. 23 of 2014 concerning Regional Government were repealed and repressive supervision was reinstated, especially on regional regulations on regional taxes and levies through Article 99 Paragraph (2) of Law No. 1 of 2022 concerning the Financial Relations of the Central and Regional Governments. This research aims to determine the legal consequences of the enactment of Article 99 Paragraph (2) of Law Number 1 of 2022. This research is normative legal research that employs both a statutory and an analytical method. According to the findings of the author's investigation, Article 99 paragraph (2) of Law No. 1 of 2022 concerning Financial Relations of the Central and Regional Governments is not in accordance with Article 24A paragraph (1) of the Constitution of the Republic of Indonesia of 1945, and give rise to Dualism of Authority to review Regional Regulations of Regional Taxes and Levies in Indonesia, and thereby a judicial review must be submitted to the Constitutional Court as soon as possible.
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Asnawi, Habib Shulton. « Politik Hukum Putusan MK No. 46/PUU-VIII/2010 Tentang Status Anak di Luar Nikah : Upaya Membongkar Positivisme Hukum Menuju Perlindungan HAM ». Jurnal Konstitusi 10, no 2 (20 mai 2016) : 239. http://dx.doi.org/10.31078/jk1023.
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Protection of human rights (human rights) in the Constitution applies in Indonesia ever prove that one of the requirements for a state law is the guarantee of human rights. Indonesia assertion of law set forth in the 1945 amendment of Article 1 paragraph (3) “State of Indonesia is the Rule of Law”. The form states have laws on the protection of human rights in implementation by the Constitutional Court (MK) in Decision No. 46/PUU-VIII/2010 on the Status of Child Marriages outside. Political decisions of law sought to protect the rights of the child, in addition to trying to dismantle the positivistic-legalistic law, which for year’s had been shackled for justice and human rights. However, in Indonesia the law of the Constitutional Court reap the political pros and cons. Therefore, it is necessary socialization broadly relevant decision of the Court, the Court of law that political action are on the correct constitution, embodying the rule of law and democratic ideals for the sake of our nationhood and nation’s dignity. Constitutional Court’s decision is a wise choice and a step forward in the field of law for the defense of children’s rights that have long shackled Article 43 of the Act. N0. 1 of 1974 on Marriage. To be effective this decision the government should immediately respond with a set of supporting regulations that can be implemented by the Ministry of Religious Affairs and Ministry of Interior.
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Ssenyonjo, Manisuli. « The Crime of Unconstitutional Change of Government and Popular Uprisings in Africa : Issues and Challenges ». African Journal of International and Comparative Law 28, no 3 (août 2020) : 432–65. http://dx.doi.org/10.3366/ajicl.2020.0322.
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Several African states have experienced military coups as a form of government change, undermining the constitutional change of governments, human rights and threats to regional peace and security in Africa. This article examines the crime of unconstitutional change of government in Africa. It considers the jurisdiction of the International Criminal Court (ICC) and the International Criminal Law section of the African Court of Justice and Human and Peoples’ Rights over the crime of unconstitutional change of government. It then examines the scope of the crime of unconstitutional change of government and whether there is a right to peaceful rebellion against undemocratic governments in Africa. It also considers the impact of immunity granted to African heads of state on the prosecution of the crime of unconstitutional change of government. It further explores whether the imposition of the death penalty by some domestic courts for the crime of unconstitutional change of government is compatible with African states’ international human rights obligations under the African Charter on Human and Peoples’ Rights and other human rights instruments. This is followed by a consideration of the challenge of providing funds for the benefit of victims of crimes including unconstitutional changes of government.
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Yelkina, A. V., et I. T. Faizullin. « Local government as a form of public authority in decisions of the Constitutional Court of the Russian Federation ». Municipality : Economics and Management, no 1 (2021) : 76–85. http://dx.doi.org/10.22394/2304-3385-2021-1-76-85.
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Calabrò, Vittoria, et M. Antonella Cocchiara. « The form of parliamentary government and ‘perfect’ bicameralism in the Italian constitutional system : at the beginning of the Italian constituents’ choices (1946–47) ». Parliaments, Estates and Representation 35, no 1 (23 décembre 2014) : 84–108. http://dx.doi.org/10.1080/02606755.2014.990783.
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Knyazev, Sergey D. « Federalism and Elections in the Russian Federation : National and Regional Aspects ». International Journal of Legal Information 35, no 2 (2007) : 233–44. http://dx.doi.org/10.1017/s0731126500002213.
Texte intégralRésumé :
Russian constitutional principles setting out a federal system and a republican form of government are integral attributes of Russian nationality. It makes it necessary to create an adequate blend of federalism and electoral politics. Accordingly, there is a special interest in the problem of electoral federalism. It implies, together with provisions for the unity of the Russian Federation's electoral system, fundamental principles, and real opportunities for the subjects of the Federation to independently solve problems on organizing and holding elections in their territories. At least, such an approach correlates to federalism and elections at the national and regional levels and is declared in the articles of the Constitution of the Russian Federation as well as decisions of the Russian Constitutional Court.
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Hastuti, Proborini. « Menakar Konstitusionalitas Penundaan dan/atau Pemotongan Anggaran Transfer ke Daerah dalam UU APBN ». Jurnal Konstitusi 19, no 4 (30 novembre 2022) : 843. http://dx.doi.org/10.31078/jk1945.
Texte intégralRésumé :
Provisions regarding delays and/or withholding of transfers to regions by the Government in the APBN Law create problems when they are considered to create legal uncertainty regarding finances, which should be the domain of regional governments. This study aims to analyze: the constitutional urgency of the existence of a transfer budget to the regions from the center and the suitability of the sanctions for delaying and/or cutting budget transfers to the areas in the APBN Law. The study results show that transfers to the regions are a form of constitutional embodiment in the form of handing over financial resources to the areas as an actualization of effective fiscal decentralization. However, in practice, some regions do not comply with budget allocations, so the implications for regional financial management are not on target. On the other hand, the provision of sanctions for delaying and/or withholding funds transfers to the regions is in line with the financial construction of the unitary state with a decentralized system. This has also been strengthened through Constitutional Court Decision No. 5/PUU-XVI/2018.