Constitutional Law Commons^™

Tinjauan Yuridis Prompt Release Procedure Dalam Menangani Tindak Pidana Perikanan Di Zona Ekonomi Eksklusif Indonesia, Haridus Haridus, Sudardi Sudardi, Kresno Buntoro

Jurnal Hukum & Pembangunan

Article 292 UNCLOS is a novel provision, both in the law of the sea and in general international law, as no such provision existed before the Convention was adopted. The purpose of procedure is to reconcile the interests of the detaining State in its measures against the flag State. Generally, the flag State wishes its vessel and its crew released promptly while the interest of the detaining State to secure the court appearance of the Master and the payment of penalties. Under Indonesian law, the procedure regarding prompt release is regulated in the provisions of Article 104 of Law Number …

Sebuah Kerangka Teoretis Hubungan Institusional Berbasis Konstitusionalisme, Titon Slamet Kurnia

Jurnal Hukum & Pembangunan

This article discusses legal issue pertaining to institutional relationship between the Constitutional Court and the Supreme Court in case of constitutional interpretation, particularly the bindingness of the Constitutional Court’s opinion over the Supreme Court. Responding the issue, this article conveys departmentalist view, and rejects judicial supremacist view within the Constitutional Court in prescribing the constitutional interpretation authority. In line with departmentalism, this article argues that the Supreme Court should be given authority in constitutional interpretation, concurrent with the Constitutional Court. It is further argued that constitutional interpretation should be viewed as constitutional discourse in which the Supreme Court should be …

Ijtihad Berbasis Maqashid Syari’Ah Sebagai Pijakan Konseptual Dalam Pembaruan Hukum Keluarga Islam Indonesia, Ilham Tohari, Moh. Anas Kholish

Jurnal Hukum & Pembangunan

Many circles consider that Islamic family law in Indonesia must be renewed. But Islamic family law renewal is not an easy matter. The rejection of various parties to the Counter Legal Draft-Compilation of Islamic Law (CLD-KHI), as an effort to renew Islamic family law, become evidence of the difficulty of the renewal. Rejection of the CLD-KHI on the other hand also shows that Islamic family law reform must be carried out with approaches and methodologies derived from the tradition of Islamic thought itself. In this context, ijtihad based on maqashid syari'ah acts as a conceptual basis for the methodology of …

Subsidi Angkutan Udara Kargo Dalam Kerangka Program Jembatan Udara Sebagai Kewajiban Pelayanan Publik Di Indonesia, Muhammad Ikram Afif

Jurnal Hukum & Pembangunan

The state is obliged to subsidize cargo air transport to Air Transport Business Entities in the form of State-Owned Enterprises (SOEs) and non-SOEs. This provision is carried out by the application of public service obligation through the Air Bridge program carried out by the government through assignments to SOEs and/or private Air Transport Business Entities through the selection of other service providers in accordance with statutory provisions. This study attempts to analyze the problems related to the implementation of subsidized cargo air transport as a public service obligation based on the legal framework of public services in Indonesia; comparison of …

Model Pengaturan Kedaruratan Dan Pilihan Kedaruratan Indonesia Dalam Menghadapi Pandemi Covid-19, Fitra Arsil, Qurrata Ayuni

Jurnal Hukum & Pembangunan

Indonesia own various of legal models uses to deal with emergencies. Two emergency arrangements in the 1945 Constitution are represented by the phrase "state of danger" in Article 12 of the 1945 Constitution and the phrase " coercive importance " in Article 22 of the 1945 Constitution. Both have different characters and implications for both the power generated and the oversight mechanism. In addition, there are also emergency legal instruments based on laws, which are represented among others by the Disaster Mitigation Act and the Health Quarantine Act. Interestingly, an emergency based on this law is not directly related to …

Covid-19, Pemenjaraan Berlebihan, Dan Potensi Katastrofe Kemanusiaan, Iqrak Sulhin

Jurnal Hukum & Pembangunan

On March 2, 2020 Indonesia recorded the Covid-19 case for the first time. Since then the trend in the number of infections has continued to increase. Likewise, the number of deaths. To anticipate the spread within the Penitentiary (Lapas), the Ministry of Law and Human Rights is releasing prisoners, through accelerating assimilation and parole. Similar policies have also been carried out by other countries in the world and are recommended by international institutions, such as the World Health Organization and the United Nations Office on Drugs and Crimes. However, the main problem behind this policy is the overcrowding condition in …

Pendanaan Pihak Ketiga (Third Party Funding) Dalam Penyelesaian Sengketa Melalui Arbitrase Dan Kemungkinan Penerapannya Di Indonesia, Carissa T.A. Temenggung, Yetty Komalasari Dewi

Jurnal Hukum & Pembangunan

The Third Party Funding (TPF) concept is an alternative method of funding usually applies in the dispute resolution process. Recently, the TPF concept has often been used in the process of resolving international arbitration disputes, both commercial and investment. This paper analyses the TPF concept and practices in several states, and its possible application in Indonesia. In particular, this paper discusses efforts made to regulate the TPF both in national law of several jurisdictions and in the international level, key issues within TPF in relation to the arbitration dispute resolution, and the TPF key provisions to be considered should Indonesia …

Instrumentation Of Ex-Officio Rights Of Religious Courts Judge Related To Fulfilling Children And Wife's Rights Due To Divorce, Adi Nur Rohman Uni, Sugeng Sugeng, Hesti Widyaningrum

Jurnal Hukum & Pembangunan

Most of divorce cases in Indonesia have a negative impact on divorced children and wives. This is due to the lack of public legal knowledge especially wives who are entangled in divorce cases so that their rights are often ignored. Judges of the Religious Court, in this regard, have a very important role in the protection of the rights of children and wives through the instrumentation of ex-officio rights which, because of his position, he has special authority in deciding the divorce case. This research is a combination of normative and empirical juridical research by connecting the case approach and …

Innocent Until Presented, Aristo Pangaribuan

Jurnal Hukum & Pembangunan

This paper analyzes a practice of presenting suspects, which is a ritual that displays a suspect before the media. Until now, although it is frequently used by the police, there has been no attempt to examine such practices in Indonesia. In the criminal procedure scholarship, there is no standard term to describe it. This article will refer to such ritual as a presentation of suspects. This ritual has also been practiced around the world with different methods and has a long history, especially in the United States. This article discusses the presentation of suspects and question whether such a ritual …

Penjatuhan Kebiri Kimia Bagi Pelaku Kejahatan Seksual Terhadap Anak Dalam Perspektif Falsafah Pemidanaan, Tunggal S, Nathalina Naibaho

Jurnal Hukum & Pembangunan

Sexual assault against children is an phenomenon that often occurs in Indonesia. The statistic shows that the number of sexual assault against children doesn't decrease significantly. Punishment is not the only way to control the number of sexual assault against children. Then, the goverment passed new regulation that regulating of chemical castration in hope of reducing the number of sexual crimes against children. However, the presence of chemical castration raises objections and differences of opinion in various circles. This research aims to determine the sentencing purpose of chemical castration and the proper sanction for imposing chemical castration in Indonesia. This …

Rgensi Meratifikasi Framework Convention On Tobacco Control (Fctc) Dalam Upaya Pengendalian Konsumsi Tembakau Di Indonesia, Fajar Kurniawan

Jurnal Hukum & Pembangunan

The current problem of tobacco consumption has become a global issue that covers almost all aspect of life, both economic, social and community welfare aspects, especially for the health aspects because of the impact of the healt losses they cause. Cigarette consumption in Indonesia continues to experience a significant increase. Indonesia is the thrid country with the highest number of smokers in the world. Global tobacco consumption control has been stated in Framework Convention on Tobacco Control (FCTC) since 2003, but until now Indonesia has not ratified that FCTC. As part of the civilization of the international community, it is …

Model Negara Kesatuan Republik Indonesia Di Era Reformasi, Mahmuzar Mahmuzar

Jurnal Hukum & Pembangunan

Article 1 Paragraph (1) of the 1945 Constitution stated that the state of Indonesia shall be a unitary state, with the form of a Republic and in article 37 paragraph (5) is affirmed that the form of the unitary state of the Republic of Indonesia may not be amended. There are two kinds of unitary state, namely unitary state with centralistic system and unitary state with decentralized system. The unitary state with decentralized system has five variants, namely; (1) unitary state with centralized decentralized system; (2) unitary state with decentralized system that decentralistic; (3), unitary state with proportional decentralized system; …

Age Before Fundamental Right? Resolving The Contradiction Presented By An Age Restriction On Running For Executive Offices In Montana's Constitution, Kevin Frazier

Barry Law Review

The Montana Constitution guarantees that “[t]he rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protection of such persons.” Adults receive similarly strong protections. According to Article II, Section 15, of the Montana Constitution, “[a] person 18 years of age or older is an adult for all purposes,” except for legislated limits on the legal age to purchase alcohol.

It follows that all Montanans have a constitutional claim to the fundamental right that "[a]ll elections shall be free and …

Christians And/As Liberals?, Steven D. Smith

Notre Dame Law Review

Christianity and liberalism were made to fit each other, like hand and glove. According to some interpretations, anyway. Liberal constitutionalism, with its commitments to freedom and equal human dignity, is the political system that reflects and embodies Christian commitments; and the constitutional legal order that accompanies liberalism, centrally including legally enforced rights of religious freedom, is the mode of government that best permits Christians to live in accordance with their faith in a fallen and deviant world. Thus, a couple of decades ago, Robert Kraynak reported that “[a]lmost all churches and theologians now believe that the form of government most …

Was Atwater V. Lago Vista Decided Correctly? The Fourth Amendment's Shadow And Simulacra Of Police Brutality And The American Dream, Charles Lincoln

Barry Law Review

No abstract provided.

"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan S. Chapman

Notre Dame Law Review

This Essay first attempts to understand how a contested Christian doctrine found its way into constitutional law. It does so through a reverse genealogy of ideas—an archaeology, perhaps. The Essay begins by sketching how U.S. constitutionalism, in both theory and doctrine, reflects the belief that the “arc of the moral universe is long, but it bends toward justice.” It then suggests that underlying this constitutional theme is a merger of two features of American civil religion: the tradition of treating the Declaration of Independence and the Constitution as the central texts of a sacred canon and the belief that America …

Catholic Liberalism And The Liberal Tradition, Kathleen A. Brady

Notre Dame Law Review

Criticisms of liberalism are nothing new. All political traditions have their detractors, and as in the past, today’s critics of liberalism include those on the left and right as well as religious believers and those without religious affiliations. However, in very recent years, far-reaching and deepening critiques have been emerging from an unlikely source. Throughout American history, the nation’s religious communities have been among the strongest defenders of religious freedom as well as other fundamental liberal values such as limited government, democratic institutions, civic equality, and other civil freedoms. Conservative Christians have been no exception. With other Americans, they have …

The Weaponization Of Attorney’S Fees In An Age Of Constitutional Warfare, Rebecca Aviel, Wiley Kersh

Sturm College of Law: Faculty Scholarship

If you want to win battles in the culture war, you enact legislation that regulates firearms, prohibits abortions, restricts discussion of critical race theory, or advances whatever other substantive policy preferences represent a victory for your side. But to win the war decisively with an incapacitating strike, you make it as difficult as possible for your adversaries to challenge those laws in court. Clever deployment of justiciability doctrines will help to insulate constitutionally questionable laws from judicial review, but some of the challenges you have sought to evade will manage to squeak through.

To fully disarm your opponents in an …

Severability And Standing Puzzles In The Law Of Removal Power, Jack Ferguson

Notre Dame Law Review

One of the “oldest and most venerable debates in U.S. constitutional law” concerns the President’s ability to fire executive branch officers. That debate shows little sign of subsiding. In recent years, the Supreme Court has decided a number of removal power cases that reflect an increasingly formalist turn. These cases have endorsed a version of the unitary executive theory and blessed the President’s ability to remove nominally independent officials. When it comes to questions of severability and remedy, however, the formalist majorities have fractured. Collins v. Yellen, decided in 2021, provides the most illuminating example. Justices Thomas and Gorsuch concurred …

Death By Detox: Substance Withdrawal, A Possible Death Row For Individuals In Custody, Dorothea R. Carleton

Journal of Law and Health

Suffering through substance withdrawal is a major problem for the majority of individuals in custody, yet there are no guidelines or standards to ensure their safety. Instead, individuals in custody are having their Constitutional rights violated and many die at the hands of the justice system. When their families seek accountability for the lack of adequate care provided by correctional facilities and employees, families are faced with a lack of consistency from one circuit to the next for knowing as to the correct standard to have a successful claim. Strain v. Regalado was a chance for the Supreme Court to …