This revisionary perspective on South Africa's celebrated Constitutional Court draws on historical and empirical sources alongside conventional legal analysis to show how support from the African ...National Congress government and other political actors has underpinned the Court's landmark cases, which are often applauded too narrowly as merely judicial achievements. Standard accounts see the Court as overseer of a negotiated constitutional compromise and as the looked-to guardian of that constitution against the rising threat of the ANC. However, in reality South African successes have been built on broader and more admirable constitutional politics to a degree no previous account has described or acknowledged. The Court has responded to this context with a substantially consistent but widely misunderstood pattern of deference and intervention. Although a work in progress, this institutional self-understanding represents a powerful effort by an emerging court, as one constitutionally serious actor among others, to build a constitution.
The formulation of procedural law within the constitutional court is a crucial requirement, as stipulated by Article 24 C paragraph (6) of the 1945 Constitution of the Republic of Indonesia. While ...the Constitutional Court Procedural Law is outlined in Law No. 24 of 2003 on the Constitutional Court, it merely provides general points. Special aspects, aligned with individual case characteristics, are deferred to the Constitutional Court for independent regulation based on Article 86 and the Explanatory Note to Law No. 24 of 2003. However, this delegation is inappropriate as procedural law should be governed by Law-level regulations, not by Constitutional Court Regulations (PMK). To date, the Constitutional Court continues to produce the Procedural Law in the form of PMKs. This study employs a normative juridical research method, with a statutory and conceptual approach, and conducts analysis in a qualitative descriptive manner. This paper concludes, firstly, that the creation of procedural law within the constitutional court holds philosophical, juridical and sociological significance. Secondly, the drafting process of the constitutional court’s procedural law must adhere to the process of forming sound laws and regulations and contain materials in line with their level as prescribed in the legislation.
Under its first chief justice, Arthur Chaskalson, the South African Constitutional Court built an unrivalled reputation in the comparative constitutional law community for technically accomplished ...and morally enlightened decision-making. At the same time, the Court proved remarkably effective in asserting its institutional role in post-apartheid politics. While each of these accomplishments is noteworthy in its own right, the Court's simultaneous success in legal and political terms demands separate investigation. Drawing on and synthesising various insights from judicial politics and legal theory, this study offers an interdisciplinary explanation for the Chaskalson Court's achievement. Rather than a purely political strategy of the kind modelled by rational choice theorists, the study argues that the Court's achievement is attributable to a series of adjudicative strategies in different areas of law. In combination, these strategies allowed the Court to satisfy institutional norms of public reason-giving while at the same time avoiding political attack.
At least there has been a development regarding the constitutional authority of the Constitutional Court in four ways based on its decision. It is also true that the Constitutional Court's decision ...is final and binding, but not in the sense of not being examined further. This study uses normative research methods. The results revealed four developments in the constitutional authority of the Constitutional Court in three ways: passive, active, and passive-active methods. Furthermore, it was also revealed; that there are also development efforts that have occurred more than once in the same matter. Therefore, in the future when the Constitutional Court decides on cases related to its authority, ideally by observing the limiting signs of the previous decision and considering the three basic characteristics of constitutional interpretation. Likewise, in the future there is another development regarding the constitutional authority of the Constitutional Court. In that case, it is appropriate to also pay attention to the three basic characteristics of constitutional interpretation.
Niklas Luhmann's early systems-theoretical conception of functional differentiation holds both normative and empirical insights for our understanding of constitutional adjudication. For example, ...Luhmann's conception of legal autonomy may help to shed new light on the countermajoritarian difficulty. Secondly, his theory of how the political system is differentiated into two sub-systems can improve our conceptual understanding of judicial politicization. To illustrate this potential, this book applies “Legitimation durch Verfahren” in particular and Luhmann's early systems theory in general to Germany’s Federal Constitutional Court and the United States Supreme Court.
The Constitutional Court (MK) has a strategic position, authority, and obligation to determine the future of the Indonesian nation. This study aims to examine the educational role of the ...Constitutional Court in developing a constitutional understanding of Indonesian citizens constitutionally. This research used doctrinal legal research method, a process to find the rule of law, legal principles, and legal doctrines to answer the legal problems faced. The results showed the educative role of the Constitutional Court in fostering constitutional understanding of Indonesian citizens by creating programs to promote constitutional understanding of Indonesian citizens, i.e.: increasing the understanding of citizens' constitutional rights; disseminating information on the Constitutional Court, and development of constitutional awareness culture.; debate on student constitutions between universities throughout indonesia; telling the values of Pancasila on social media; and increasing understanding of the constitutional rights of civics with outstanding teachers; and educating people's attention. The Constitutional Court's products in the form of decisions contain public education on compliance with the Constitution correctly and rationally. The Constitutional Court's decision will always be linked to the public with the Constitution and the interests of justice seekers because the court examines the interests of justice seekers related to the Constitution.
A democratic state may be indicated by the existence of a constitutional institution that has the competence to uphold constitutionalism and defend the constitution. As the guardian of the ...constitution, the Constitutional Council of the Kingdom of Cambodia (Constitutional Council) and the Constitutional Court of the Republic of Indonesia (Constitutional Court) have the same purpose, namely to uphold constitutionalism and protect the constitution. However, in terms of structure, procedures, and competencies, the Constitutional Council and the Constitutional Court have individual mechanisms. Institutionally, the two judicial bodies occupy different characteristics, but they share the common goal of safeguarding the constitution’s core values. This paper aims to analyze and scrutinize different features of the Constitutional Council and the Constitutional Court by showing the same purpose as the guardian of the constitution. Within this paper, the legal outcomes which is decisions are discussed, particularly the effect of the decisions. In addition, this paper looks into who can be the applicant or can file a complaint and clarifies the qualifications and resignations of judges. This paper concludes on whether the Constitutional Court and the Constitutional Council have different paths in upholding constitutionalism and protecting the constitution.
The third amendment to the Constitutional Court Act drew a lot of criticism, especially regarding the urgency of the change, considering that the Constitutional Court Law is not included in the ...priority prolegnas in 2020. There are two issues of the third amendment to the Constitutional Court Law that are highlighted in this article, namely, The Material Analysis of the Third Amendment to the Constitutional Court Law is based on the Regulation on the Formation of Laws and Regulations and the Formal Analysis of the Third Amendment to the Constitutional Court Law In terms of the Law on the Formation of Laws and Regulations. The research method used is a type of normative research. The approaches used in this study are the statute approach, case approach and concept approach using prescriptive analysis. The results of the analysis show that (1) Materially, the Third Amendment to the Constitutional Court Law is based on the Regulation on the Establishment of Laws and Regulations, it is noted that the Third Amendment to the Constitutional Court Law has defects in its amendments, namely regarding the minimum limit of age to be able to become a constitutional judge and regarding the abolition of the period of periodization of constitutional judges which is considered contrary to the constitution or unconstitutional. and (2) Formally, the Third Amendment to the Constitutional Court Law In view of the Law on the Establishment of Laws and Regulations of the Constitutional Court Law, the third amendment has been formally flawed in its amendments, where there are several provisions that are not in accordance with the format of preparation as intended in Law Number 12 of 2011 jo Law Number 15 of 2019 concerning the Establishment of Laws and Regulations (P3 Law).
The power of law of statutory norms under the law after the reference regulation can be canceled by the Constitutional Court. The validity of the legal strength of implementing regulations from Law ...Number 7 of 2004 concerning Water Resources can be determined through a higher legal norm above it because a higher norm will lead to a basic norm which becomes the source of the legal norms under it. Likewise with implementing regulations of a law, the validity of which is determined by the legal norms above it as a whole or per article because the legal norms above are sourced and lowered as sources. In accordance with the theory put forward by Adolf Merkel in the theory of legal ranking, which states that a legal norm has two faces, das Doppelte Rechtsanlitz. Adolf revealed that a norm is upward as a source and basis for legal norms underneath. Thus, the validity of the implementing regulations of Law Number 7 of 2004 concerning Water Resources will lose its validity when the source norms have been canceled by the Constitutional Court so that amendments to Law Number 12 of 2011 concerning the Formation of Laws and Regulations by the DPR and President.
The ups and downs and political configurations that have occurred in Indonesia since the old order, the new order until the reformation have affected the judicial power system in Indonesia and thus ...have an impact on the recruitment of first-level court judges. This study aims to determine the recruitment of first-level court judges since the old order until the issuance of the Constitutional Court Decision Number 43/PUU-XIII/2015. This type of research is a normative juridical research by assessing the historical approach and the comparative approach. The results showed that after the Constitutional Court decision Number 43 / PUU XIII / 2015, the recruitment of first-level court judges by the Supreme Court in 2017 was still with the same recruitment pattern as before, namely state civil servants.
PDF