scholarly journals The Role of the Indonesian Constitutional Court for An Effective Economic, Social and Cultural Rights Adjudication

2016 ◽  
Vol 1 (1) ◽  
pp. 72
Author(s):  
Heribertus Jaka Triyana
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Judicial Review ◽  
Constitutional Court ◽  
Court Decisions ◽  
Cultural Rights ◽  
Legal Power

The Indonesian Constitutional Court has played important roles and functions to protect and fulfill human rights in the Indonesian legal system including the economic, social and cultural rights through its legal power of  judicial review.   It affirms that the ecosoc rights are legal justiciable rights and they are parts of constitutional mandates. It means that decision on judicial reviews require State to behave in accordance to legal thresholds decided by the Court. Undoubtedly, compliance to the decisions will reveal undeniable facts for fulfilment of state conduct. However, it seems that there are still many considerations, emphasis and excuse to somehow reduce or ignore threshold of application of the Court decisions. Complexity of actors, institutions, authorities, level of implementation, and orientation of particular policies, programs, actions and funds reduces the thresholds.

Indonesia

2019 ◽  
pp. 231-252
Author(s):  
Simon Butt ◽  
Prayekti Murharjanti
Keyword(s):  
Judicial Review ◽  
Pollution Control ◽  
Environmental Law ◽  
Constitutional Court ◽  
Court Decisions ◽  
Implementation Framework ◽  
Judicial Decisions ◽  
Waste Air ◽  
Judicial Reasoning

This chapter examines the environmental law of Indonesia. It first provides an overview of the allocation of powers with respect to Indonesia’s environmental law, taking into account the constitutional basis of environmental protection and the Ministry of Environment’s devolution of powers for managing the environment. The chapter then considers the structure and substance of environmental regulations as they apply to pollution control and hazardous waste, air pollution and climate change, and marine and fisheries. It concludes with an analysis of the implementation framework for environmental law, focusing on the creation of the Ministry of Environment and Forestry via the merger of the Ministry of Environment and Ministry of Forestry. Judicial enforcement of environmental law is also explored, with emphasis on the role of certified judges assigned to the general and administrative courts, judicial decisions and enforcement, judicial review in the Constitutional Court, judicial reasoning, and enforcement of Constitutional Court decisions.

scholarly journals Legal-Political Paradigm of Indonesian Constitutional Court: Defending a Principled Instrumentalist Court

2020 ◽  
Vol 6 (1) ◽  
pp. 36
Author(s):  
Mirza Satria Buana
Keyword(s):  
Judicial Review ◽  
Review Process ◽  
The Political ◽  
Constitutional Court ◽  
Court Decisions ◽  
Main Argument ◽  
Policy Decisions ◽  
Political Arena ◽  
History Of

The establishment of the Indonesian Constitutional Court in 2003 signified the formation of a bridge between the judiciary and politics. Through its judicial review process, there is a more tangible presence of the judiciary and court in the political arena. The Court helps with addressing moral predicaments and influencing the products of the legislature. This paper discusses the shifting of the legal-politico paradigm, particularly relating to judicial leadership of the Court because this significantly affects the role of the Court in the political arena. The history of the establishment of the Court’s authority in judicial review is explored through a stylised analysis of the actions of two early Chief Justices. This paper also examines two Court decisions which illustrated the Court’s authority on judicial review because they demonstrated the importance of policy-driven decisions and judicial restraint. The main argument of this work is that it is hard to categorize the legal-politico actions of the Indonesian Court into either legalism or instrumentalism. Often, the Court synthesises the two. The legal-politico paradigm is a dynamic one. The most feasible model of the Indonesian Constitutional Court is that of a Principled Instrumentalist Court, where policy decisions guide the formation of legislation according to constitutional values, but the judges maintain prudential self-restraint.

scholarly journals On the issue of the mechanism for the restoration of violated human rights by an administrative court on a constitutional complaint

Legal Ukraine ◽  
2020 ◽  
pp. 24-32
Author(s):  
Mykhailo Smokovych
Keyword(s):  
Human Rights ◽  
Key Words ◽  
Legal System ◽  
Social Rights ◽  
Constitutional Court ◽  
Court Decisions ◽  
Legislative Regulation ◽  
Administrative Proceedings ◽  
Discretionary Powers

The article is devoted to a substantive analysis of the mechanism for restoring violated human rights on a constitutional complaint. It has been established that the legal system of Ukraine contains a number of objective factors that complicate the restoration of violated human rights on a constitutional complaint, the elimination of which first of all requires the development of a doctrinal and legislative platform, which should become a universal basis for the formation of a unified practice of administrative proceedings It has been substantiated that the retrospective effect of decisions of the Constitutional Court of Ukraine cannot be absolute. Retrospective effect of decisions of the Constitutional Court of Ukraine is possible in the following cases: if court decisions in the case have not yet been executed; when it comes to the protection of fundamental human rights, of which social rights are a component. As for other human rights, legislative filters are needed that will allow courts to apply retrospective action of decisions of the Constitutional Court of Ukraine in other cases, otherwise the activity of courts will go beyond their discretionary powers. It has been established that expanding the range of retrospective action of decisions of the Constitutional Court of Ukraine requires legislative regulation. Key words: administrative proceedings, retrospective action of a decision, prospective action of a decision, body of constitutional jurisdiction, fundamental human rights.

scholarly journals PERAN MAHKAMAH KONSTITUSI DALAM MENJAMIN HAK KONSTITUSIONAL WARGA NEGARA PADA PROSES DEMOKRATISASI DI INDONESIA

2009 ◽  
Vol 39 (4) ◽  
pp. 437
Author(s):  
Mutiara Hikmah
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Judicial Authority ◽  
Normative Messages

AbstrakThe Constitutional Court as the judicial authority is responsible for maintaining the constitution directly and participates in strengthening the rights of human rights. This is drawn directly from the nature of the understanding that the constitution itself as a political document that protects the rights of human rights of every citizen and people who live in the country. This began the constitutional functions of the most essential are the first, limiting the powers contained in the constitutional scheme of a nation, and second, to formulate protection constitutional rights of the citizens and the rights of human as a whole. That is why the role of the Constitutional Court directly correlated with the significance of the role of enforcement agencies of human rights in terms of "norms control". Embodiment of constitutional and judicial review is examining through compliance with the norms of the constitution messages that cannot be separated from the ·universality of normative messages of human rights.

TOWARDS NON-DISCRIMINATION AGAINSTWOMEN AND DE JURE EQUALITY IN UGANDA: THE ROLE OF UGANDA'S CONSTITUTIONAL COURT

2008 ◽  
Vol 16 (1) ◽  
pp. 1-34 ◽  
Author(s):  
MANISULI SSENYONJO
Keyword(s):  
Human Rights ◽  
Constitutional Court ◽  
Political Rights ◽  
Men And Women ◽  
Cultural Rights ◽  
Substantive Equality ◽  
Participation Of Women ◽  
Formal Equality ◽  
Civil And Political Rights

The principles of equality and non-discrimination represent the twin pillars or the cornerstone upon which the whole edifice of human rights law is established.1 At least every State in the world today is a party to a human rights treaty prohibiting discrimination on the basis of sex and/or protecting equality between men and women.2 Despite this fact inequality and discrimination remain two major impediments to the enjoyment of human rights of women. Discrimination against women on the basis of sex denies or limits as it does their equality with men, and is ‘fundamentally unjust’ since it violates the principles of equality of rights and respect for human dignity.3 It is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their States, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women.4 International human rights instruments such as Article 3 of the International Covenant on Civil and Political Rights (ICCPR)5 and Article 3 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)6 underline commitment to sexual equality in the enjoyment of all civil and political rights, as well as economic, social and cultural rights. Similarly, Article 2 and 3 of the African Charter on Human and Peoples’ Rights (ACHPR) prohibit discrimination and protect equality before the law.7 This demands de jure (or formal) equality and de facto (or substantive) equality for men and women.8 Formal equality assumes that equality is achieved if a law or policy treats men and women in a neutral manner.9 Substantive equality is concerned, in addition, with the effects of laws, policies and practices and with ensuring that they do not maintain, but rather alleviate, the inherent disadvantages that particular groups experience.10

scholarly journals On resolution priority by Russian Federation constitutional court over interstate body decisions for the protection of human rights and freedoms

2020 ◽  
Vol 6 (Extra-A) ◽  
pp. 52-56
Author(s):  
Valeeva Guzel Anvarovna ◽  
Larionova Anastasiya Nikolaevna ◽  
Lipinsky Dmitry Anatolyevich
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Legal System ◽  
Constitutional Court ◽  
Court Decisions ◽  
International Treaty ◽  
Protection Of Human Rights ◽  
The Russian Federation ◽  
Legal Force

This article examines the priority of Russian Federation Constitutional Court decisions over the decisions of interstate bodies for the protection of human rights and freedoms. Since the international treaty, the legal positions of the ECHR do not abolish the supremacy of the Constitution for the Russian legal system, the decisions of the ECHR are subject to implementation within this system only on condition that the supreme legal force of the RF Constitution is recognized. If the ECHR interprets the 1950 Convention as contrary to the RF Constitution, then in this regard, Russia refuses to follow literally the ruling of the ECHR. In conclusion, the authors note that the Constitutional Court of the Russian Federation ruled that it would decide the issue of the ECHR decision execution in each case individually but considering the recognition of the RF Constitution supremacy.  

Provision of Remedies for Violation of Economic, Social and Cultural Rights: A Comparative Study of the United Nations, Inter-American and African Human Rights Systems

2020 ◽  
Vol 28 (2) ◽  
pp. 298-318
Author(s):  
Roman Girma Teshome
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Comparative Study ◽  
Economic Rights ◽  
Regional Monitoring ◽  
Cultural Rights ◽  
The Past ◽  
The United Nations ◽  
To Receive

The effectiveness of human rights adjudicative procedures partly, if not most importantly, hinges upon the adequacy of the remedies they grant and the implementation of those remedies. This assertion also holds water with regard to the international and regional monitoring bodies established to receive individual complaints related to economic, social and cultural rights (hereinafter ‘ESC rights’ or ‘socio-economic rights’). Remedies can serve two major functions: they are meant, first, to rectify the pecuniary and non-pecuniary damage sustained by the particular victim, and second, to resolve systematic problems existing in the state machinery in order to ensure the non-repetition of the act. Hence, the role of remedies is not confined to correcting the past but also shaping the future by providing reforming measures a state has to undertake. The adequacy of remedies awarded by international and regional human rights bodies is also assessed based on these two benchmarks. The present article examines these issues in relation to individual complaint procedures that deal with the violation of ESC rights, with particular reference to the case laws of the three jurisdictions selected for this work, i.e. the United Nations, Inter-American and African Human Rights Systems.

Quasi-constitutional court of human rights for Europe? Comments on Geir Ulfstein

2021 ◽  
Vol 10 (1) ◽  
pp. 175-185
Author(s):  
WOJCIECH SADURSKI
Keyword(s):  
Human Rights ◽  
Public Reason ◽  
Constitutional Court ◽  
Legal Systems ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Short Comment

AbstractThis short comment offers two additional arguments, missing from Geir Ulfstein’s account, which may bolster the case for constitutionalisation of the ECtHR. The first is about the ‘pilot judgments’ through which the Court addresses systemic deficits in national legal systems and thus ensures a minimal synchronisation of human rights protection throughout the CoE system. The second manifestation of constitutionalisation of the ECHR system is the increasing role of the ECtHR in the implementation of its own judgments. Ultimately, the legitimacy for the constitutional ambitions of Strasbourg Court should be located primarily in the argumentative resources of the court and in its pursuit of ‘public reason’.

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