Lentera Hukum
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Gender Perspective of Judicial Appointment Process in South Africa and India
Get PDFRequiring a woman to choose between work and personal life is the most severe form of discrimination she can face. In practice, the large disparity between the number of women and men is not getting much attention, despite the significant increase in women studying law. From a colonial misogynist whim to a post-colonial facade of the "new-age construct of Indian woman," the legal profession has done nothing to decolonise itself from its rudimentary understanding of "equality of opportunity." When Indian jurisprudence has been swooning over the sweeping effect of transformative constitutionalism in the understanding of equality as enshrined in the Indian Constitution, one cannot help but wonder why the legal profession was left out of its brushing effect. It leads us to examine the existing literature on bar policies and the steps taken by regulatory bodies in assessing situations that are favourable or unfavourable to furthering women's issues in modern-day India. In contrast, South Africa's pro-women Bar policies are appealing in terms of evaluating their applicability and extent in terms of promoting inclusivity at the Bar. This article seeks to capitalise on the potential of these two countries in carving out a niche for women to play a substantive role in designing governance policies through the judiciary. The methodology makes use of a comparative and analytical understanding of doctrinal resources. The article examines the current gender composition of the legal profession while supporting the concept of substantive equality as a requirement in designing an appropriate judicial appointment process. The welfare policies of Bar, for instance, the parental leave, keeping track of the demographic composition of advocates in South Africa plays a distinct role in transforming the gender composition of the judiciary.Keywords: Gender Representation, Legal Profession, Substantive Equality
Pseudo-judicial Review for the Dispute over the Result of the Regional Head Election in Indonesia
Get PDFIn Indonesia, the Constitutional Court has the power to decide the dispute over the result of the national election, including that of the regional head election. In practice, the Constitutional Court exercises power with the so-called pseudo-judicial review for the result of the regional election dispute. This study aims to analyse the rationale of the Constitutional Court to implement a pseudo-judicial review over the regional head election result, given the judicial activism that also is limited to checks and balances. It also links the theoretical basis for rule-breaking and judicial activism by the Constitutional Court, the transition of the Constitutional Court's power in deciding regional election disputes from temporary to permanent, as well as further analysis of why the Constitutional Court needs to file a lawsuit for review. This study used legal research that examined legal principles and regulations with a theoretical approach analysed qualitatively. The results of this study indicate that pseudo-judicial review affirms the legal breakthrough beyond ordinary decisions as this was made on the ground of the public interest. While the Constitutional Court is essential in maintaining and overseeing democracy in Indonesia, the rationale of the Constitutional Court under the public interest is justified as it is constitutionally correct that has led to judicial activism. A pseudo-judicial review is for substantial justice and can influence time efficiency.Keywords: Constitutional Court, Judicial Review, Local Election Disputes
China’s Unsubstantiated Claims on Baselines: Legal Consequences Affecting International Security
Get PDFFor all nations, the stability of the global order is a significant concern. Despite the efforts of the international community, Asia’s peace and security are threatened by China’s aggressive behaviours in the South China Sea. Accordingly, China has claimed nearly the whole South China Sea as its territory, including water internationally acknowledged as belonging to other nations. States have the right to determine and declare their baselines for coastal areas, islands, and archipelagos that fall under their national sovereignty with regard to international law of the sea. Because of the inconsistency with the rules of international law in general and the international law of the sea in particular, China’s claims in this case are unsubstantiated. This article aims to determine China's violations to comply with their obligations under international law, especially in the South China Sea disputes. By using analysed and evaluated methods, this study pointed out the regulations that violate international law contained in documents such as the Declaration of China on the baselines of the territorial sea in 1996, the Coast Guard Law of China in 2021, the Maritime Traffic Safety Law of China in 2021, by using the comparative methods of these documents with the provisions of the international law, particularly the United Nations Convention on the Law of the Sea in 1982. The article also highlights the severe effects of China's behavior on Vietnam, particularly the implementation of the two laws previously mentioned that violate Vietnam's territorial integrity in the Paracel and Spratly Islands. As a result, the paper suggests certain notes for Vietnam and other nations to void China’s aforementioned legal documents. These suggestions, in particular, will contribute to protecting the sovereignty, sovereign rights, and jurisdiction of Vietnam, and the freedom of navigation and overflight of countries for nations across the world.Keywords: International Law, International Security, South China Sea
Environmental Protection in the Argentinian Supreme Court Case Law
Get PDFAccording to Article 41 of the Argentinian Constitution, all inhabitants have a right to environmental protection. Citizens have a right to a healthy and balanced environment, suitable for human development and productive activities to satisfy present needs without compromising those of future generations. The paper aims to analyze the tensions implicit in applying this constitutional norm by the Federal Supreme Court using the methodology of public law and legal theory. Indeed, the constitutional provision is broad, and its interpretation can lead to different solutions in a specific case. There are three main issues of legal interest discussed here. First, there is a delicate balance of protecting the environment against private property and economic activity, which the latter also being assured by the constitution. The point is particularly acute in Argentina, whose economy strongly depends on the primary sector. Second, there are tensions between the political branches (legislative/executive) and the judiciary. Environmental standards established by the judiciary are usually higher than those decided by the legislative branch. However, giving the judges the possibility to determine those standards in the absence of any previous legal norm (or even, sometimes, against that norm) could be a source of legal uncertainty. Finally, due to the federal nature of the Argentinian political system, the distribution of legislative and jurisdictional powers between the federal and local governments is disputed. In this equation, leaning towards the federal government may favor more homogeneity in environmental standards, which would simultaneously reduce local autonomy. This paper shows that the Supreme Court tries to balance different constitutional values in resolving these tensions. The difficulty of finding an adequate constitutional balance is usually added to the legal and factual complexity of environmental issues, and the result is not always completely satisfactory.
KEYWORDS: Argentina, Environmental Protection, Supreme Court Case Law
Constitutionalism and Human Rights: A Critical Analysis of the Rights of Transgender People in India
Get PDFThe movement for decriminalizing homosexual relations and the human rights of the LGBT community has gained momentum in the last decade. In India, various NGOs and LGBT society have fought a long battle demanding the decriminalization of homosexuality and declaring sexual orientation as part of the fundamental right to life under Article 21 of the Indian Constitution. This paper explored the Indian legislative framework dealing with transgender people. Furthermore, it extensively covered the landmark judgments delivered by the Indian judiciary on the subject matter and highlighted that these judgments had played an essential role in uplifting the cause and protecting the fundamental rights of transgenders. Using doctrinal research as its methodology, this study showed that the Indian Constitution essentially provides a fundamental right to equality under Article 14, whereas Articles 15 and 16 outline that no one shall be discriminated on the ground of sex. Also, the Indian judiciary had decriminalized Section 377 of the Indian Penal Code, considered as part of landmark judgments that recognize transgender people as a third gender. India also enacted the Transgender Protection Act 2019 to ensure the rights of transgenders. However, this Act failed to address the issue of forced sex-reassignment surgeries, which had been imposed upon transgender people against their consent. On the other hand, while transgenders are legally protected, gaining acceptance from society is another arduous task in which transgenders have struggled to realize an all-inclusive and non-judgmental environment towards persons with different sexual orientations.Keywords: Constitutionalism, Human Rights, Transgenders
Investment in Indonesia After Constitutional Court’s Decision in the Review of Job Creation Law
Get PDFIn 2021, the Indonesian Constitutional Court decided conditionally unconstitutional in the review of the Job Creation Law. It was among a few decisions made by the Constitutional Court to accept a formal review, even if some dissenting opinions followed it. While the decision has largely influenced a wide array of regulatory laws because the Job Creation Law adopts the omnibus law model, the pivotal issue in this paper rests on the legal basis for investment in Indonesia after this decision. Firstly, it enquired whether the Constitutional Court exceeded its power for a procedural judicial review against the Job Creation Law. Second, it discussed the legal basis for investment in Indonesia after the Constitutional Court's Decision No. 91/PUU-XVIII/2020. Using normative research, the results showed that with the conditional unconstitutional decision, the Indonesian investment world would experience legal uncertainty for the next two years, especially new businesses, licensing, and investments with the enactment of the Job Creation Law. In particular, if the legislative branch failed to improve this law over two years, businesses, licensing, and investments in Indonesia might have no legal basis, resulting in the uncertain situation of the government’s desire to realize the friendly investment.Keywords: Constituional Court, Job Creation Law, Judicial Review
Revisiting India’s Amended Citizenship Act 2019 in Light of Constitutional Ethos
Get PDFThe Citizenship Amendment Act 2019 and the National Register of Citizens in India are perceived as reflective of a religious classification in grant and continuance of Indian citizenship. The study aimed to discuss the future effects of the amended Citizenship Act 2019 and suggest alternatives to accommodate India's constitutional ethos. A considerable fraction of the Indian citizenry was discorded with this Act because Article 14 of the Indian Constitution prohibits discrimination based on religion, among other grounds. On the other hand, the state's stance asserted that the law aims to protect the persecuted religious minorities from other states. This study dealt with the nuances and intricacies of the problem to explicate viable solutions by an in-depth analysis of the issue in an unprejudiced manner where it used a combined doctrinal and empirical research to assess the perspectives on the policy in the Global South from the Indian experience. The findings reflected that while a majority of the provisions in the Act can be justified based on constitutional parameters, its few provisions are unconstitutional. In summary, even after juxtaposing all the justifications of the Act against the allegations, a considerable portion of the Act remains unconstitutional, and it needs to be revisited based on constitutional parameters.Keywords: Citizenship Act, Indian Constitution, Right to Religion
Changing Dynamics of Constitutionalism: South Asia's Tryst with Constitution
Get PDFThe prevailing view of the constitutional framework in South Asia is seen as secondary and subsidiary to developed constitutional systems worldwide. Meanwhile, South Asian countries have merely re-produced the constitutional framework of developed nations. The emergence and development of South Asian constitutionalism present a range of perspectives and methodological approaches that contribute to comparative constitutional law scholarship in South Asia. The overt attention toward the Western notion of liberalism has often led to an incomplete and unclear approach to South Asian constitutionalism. The paper aimed to explore the elements of South Asian constitutionalism alongside underlying socio-economic and political discourse surrounding its contemporary understanding. It also analyzed the role of courts in affirming and transforming South Asian constitutionalism. Instead of reviving interest in South Asia and Third World Approach to International Law, this paper showed that it is only practical and pragmatic to study constitutionalism with specific reference to the modern discourse of democracy, judicial review, separation of power, and human rights enshrined in their respective constitutions. In terms of its emergence from the colonial history and other prevalent forms of distinct cultural, social, and political practices, South Asia presented a heterogeneous experience in the light of recognition and enforcement of socio-economic rights and transformations and deviations from its past experiences.
Keywords: Comparative Constitutional Law, Constitutionalism, South Asia
Political Question Doctrine and Judicial Attitude to Political Controversies in Nigeria: Implications for Constitutionalism
Get PDFThe political question doctrine has become one of the jurisprudential issues in a constitutional democracy, as the courts may not want to exercise judicial review to determine the constitutionality of the action of the other organs of government or a statute before it. As a legal instrument, judicial review has been used to expand or reduce the powers of the governments, but the courts decide to exercise this power discretionarily on the ground that it falls within the province of politics. This study aimed to analyze 'political question' and judicial attitude to political controversies in Nigeria by unraveling how the doctrine of political question has been applied in three main areas–impeachment proceedings, political parties' primary elections, and post-election matters. It also analyzed the judiciary's attitudes to political controversies and evaluated the implications of the political question doctrine to constitutionalism. The study argued that this attitude negates the principle of constitutionalism as it contends that the courts' deliberate avoidance of a political question is typical of the judiciary in Nigeria in most political controversies. Consequently, the courts abuse the issues of discretion and non-justiciable, so that it is imperative to unravel the intricacies of the political question doctrine by undertaking a comprehensive jurisprudential analysis by highlighting the most controversial aspects and how the court's attitude in political controversies undermines its commitment to constitutionalism. Furthermore, it contradicted checks and balances, fundamental human rights, and the rule of law. This study concluded that the doctrine of political question would be judiciously used by the court and not to avoid determining contentious political issues that may likely derail Nigeria's democratic process and stability.Keywords: Constitutionalism, Judicial Review, Nigeria, Political Question
Can the Job Creation Law Solve the Lack of Public Participation in Indonesia's Spatial Planning?
Get PDFIt has been long recognized that public participation plays a vital role in dealing with spatial planning laws. However, mechanisms for the inclusion of public participation have been criticized worldwide for lacking the hallmarks of actual participation, as this trend has also occurred in Indonesia. This paper aimed to analyze the significance of public participation in Indonesia's spatial planning and whether the current Job Creation Law can solve the lack of public participation. There are no legal consequences or sanctions if the government fails to conduct public participation, while the Job Creation Law is regarded to encourage public participation by enabling the public to be actively involved in every stage of spatial planning. By employing normative research, this paper shows that the Job Creation Law reiterates the same flaws by neglecting the importance of legal consequences for not conducting public participation. The implementing regulation rests uncertainty that can reduce and discourage public participation. As the Job Creation Law was highly expected to cope with the issue, it cannot involve the public properly in spatial planning.Keywords: Job Creation Law, Spatial Planning, Public Participation