Constitutional Review
Constitutional Review is a law journal published by the Constitutional Court of the Republic of Indonesia twice a year. The primary purpose of this journal is to disseminate research, conceptual analysis and other writings of scientific nature on constitutional issues. Articles published cover various topics on constitutions, constitutional courts, constitutional court decisions and issues on constitutional law either in Indonesia or other countries all over the world. This journal is designed to be an international law journal and intended as a forum for legal scholarship which discusses ideas and insights from law professors, legal scholars, judges and practitioners.
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<![CDATA[Indonesia Constitutional Court Constitutional Interpretation Methodology (2003-2008) ]]>
<![CDATA[Siregar, Fritz Edwadr]]>
<![CDATA[ Constitutional Review Vol 1, No 1 (2015) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev111
<![CDATA[Nine Indonesian Constitutional Justices have the authority to annul a law drafted by 550 Parliament members and the President. The Constitutional  Court of the Republic of Indonesia (âthe Courtâ), particularly in deciding cases  of judicial review, has the capability to declare words, sentences, paragraphs, articles or the law unconstitutional. Consequently, it is essential for the Court  to take into account legal arguments. The fundamental element of these legal arguments is constitutional interpretation, which serves as a parameter in determining constitutionality of the laws. However, in exercising its authority, the Court needs to interpret the Constitution as a  basis  for deciding  a case.  The standards for determining the constitutionality of a law must be the text of the Constitution, not what the judges would prefer the Constitution to mean. Constitutional supremacy necessarily assumes that a superior rule is what the Constitution says it is, not what the judges prefer it to be. [Craig R. Ducat: E3]. The Court period 2003â2008 were the Courtâs the formative years, and as such are important to understand the methodology and interpretative approaches adopted by the Court. Many observers of the Courtâs early decisions are still unsure of the overarching approach and methodology adopted by the Court. Thus, there is a need  for a close analysis and criticism of  the Courtâs early decisions  to determine which methods and approaches it has adopted and whether these are appropriate in the Indonesian context. The Court has openly referred to the experiences of foreign jurisdiction in constitutional law, and therefore it would be appropriate to analyze the courtâs decisions in a broader comparative context of constitutional interpretative approaches from around the  world.]]>
<![CDATA[Convergence or Borrowing: Standing in The Indonesian Constitutional Court ]]>
<![CDATA[Hendrianto, Stefanus]]>
<![CDATA[ Constitutional Review Vol 1, No 1 (2015) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev112
<![CDATA[This Article addresses the constitutional convergence theory by examining the standing rule in the Indonesian Constitutional Court. The central investigation of this paper is whether the application of standing doctrine in the Indonesian Constitutional Court is evidence of constitutional convergence or of borrowing? This paper argues that the Constitutional Court jurisprudence on standing indicates that constitutional convergence has never taken place but rather the Court has engaged in constitutional borrowing. Legal borrowing on standing is limited to the carbon copy of the five-prong standing tests of the U.S. model,  but in reality standing doctrine in the Indonesian Constitutional Court is not based on the private rights model of adjudication. Although the Court allows individuals to bring cases before the Court, it is rather a quasi-public model of standing, in which claimants no longer have standing only to vindicate their own private rights but can also sue to vindicate public interests. Standing requirements also allow the judges to review many highly sensitive political cases, and to  some extent it enables the Court to second guess the decisions of the different branches of government.]]>
<![CDATA[The Role of the Indonesian Constitutional Court for An Effective Economic, Social and Cultural Rights Adjudication ]]>
<![CDATA[Triyana, Heribertus Jaka]]>
<![CDATA[ Constitutional Review Vol 1, No 1 (2015) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev114
<![CDATA[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.]]>
<![CDATA[The Constitutional Courtâs Role in Consolidating Democracy and Reforming Local Election ]]>
<![CDATA[Satriawan, Iwan]]>;
<![CDATA[Mokhtar, Khairil Azmin]]>
<![CDATA[ Constitutional Review Vol 1, No 1 (2015) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev115
<![CDATA[Within the same group as the USA and India Indonesia is one of the largest democracies in the world. After experiencing authoritarian rule for a few decades since its independence the country finally at the beginning of the twenty first century managed to chart along its new direction along democratic course and values. More than a decade has passed since the democratic transition begun  yet the country still faces various constitutional dilemmas and enigmas. One of organs of the government which has been entrusted to transform the country into a democratic nation is the Constitutional Court. The objective of  this  paper is to provide critical analyses of the role of the Constitutional Court of Indonesia in the process of consolidating local democracy. The scope of analysis is confined to a number of important cases heard by the court on local election disputes from the year 2008  to 2013. The rationale to focus on local election    is because local government provides the second layer of government for this unitary country making the governance more democratic and more in touch with local population. The result of the study is the Constitutional Court through its decisions has created conducive political situation and has provided significant contributions in the process of consolidating local democracy. In spite of limited number of judges and short period of settlement to disputes brought before it the Court have settled all disputes regarding local elections without much delay and complaint. Nevertheless there are some areas  that  need  to  be addressed by the court to enhance its efficiency and effectiveness. A few  factors  have  been identified to be the cause of the problems namely problem of design of structure of the Court, extension of the scope of authority, period of settlement, over-dosis of authority and the breach of  code of  ethics of  the judges.Thus it  is recommended that in order to perpetuate the excellent achievements of the court the institution need to be strengthened by addressing the problems.]]>
<![CDATA[Human Rights Constitutionalism in Indonesiaâs Foreign Policy ]]>
<![CDATA[P. Wiratraman, Herlambang]]>
<![CDATA[ Constitutional Review Vol 1, No 1 (2015) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev116
<![CDATA[This article examines conceptual discourse of human rights constitutionalism as fundamental part of making policies in international relations. There are two key questions, first, to what extent human rights constitutionalism has been brought into discourse of its foreign policies, and second, how such human rights constitutionalism has been shaped by various actors, state and non stateâs relations. The politics of imageâ has been developed from regime to regime. However, such politics does not reflect substantially in progressing of human rights development. As part of democratic governance, and in the context of a more globalized society, Indonesia should rethink of its foreign policy foundations, especially in terms of transnational issues such as human rights, environment, and poverty. Therefore, central discussion in this regards is how to strengthen human rights constitutionalism is not merely internal and/or domestic affairs, but also this should build stronger and brave policies to develop and prioritize humanity values throughout international relations.]]>
<![CDATA[Indonesian Chinese Diaspora, Dual Citizenship And Indonesian Development ]]>
<![CDATA[Sitabuana, Tundjung Herning]]>
<![CDATA[ Constitutional Review Vol 1, No 1 (2015) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev113
<![CDATA[Indonesian Citizenship Law Policy, in accordance with Article 26 Paragraph (1)of the 1945 Constitution and Act Nr. 12/2006, is closed in nature and does not recognize dual citizenship. Community members of the Indonesian Chinese Diaspora who hold foreign nationalities do not have the legal standing to file applications to the Constitutional Court for constitutional review of Act Nr. 12/2006 in an effort to obtain Indonesian citizenship, because they are not Indonesian citizens. In order for an individual to be able to obtain Indonesian citizenship without losing his or her foreign nationality, the principle of dual citizenship must be applied within the Indonesian Citizenship Law Policy. This can happen if a legislative review on or an amendment to the act (in this case Act Nr. 12/2006 regarding the Citizenship of the Republic of Indonesia) is conducted by Parliament. Thus the Government of the Republic of Indonesia must be absolutely sure and able to fully assure Parliament that Indonesia has a genuine need for the Indonesian Chinese Diaspora, because they have great potentials and can play an important role in Indonesia?s development, both in terms of the quality of human resources that have been proven and tested abroad, as well as the capital that can be invested in Indonesia.]]>
<![CDATA[Indonesia Constitutional Court Constitutional Interpretation Methodology (2003-2008) ]]>
<![CDATA[Fritz Edwadr Siregar]]>
<![CDATA[ Constitutional Review Vol 1, No 1 (2015) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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Full PDF (242.381 KB)
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DOI: 10.31078/consrev111
<![CDATA[Nine Indonesian Constitutional Justices have the authority to annul a law drafted by 550 Parliament members and the President. The Constitutional Court of the Republic of Indonesia (“the Court”), particularly in deciding cases of judicial review, has the capability to declare words, sentences, paragraphs, articles or the law unconstitutional. Consequently, it is essential for the Court to take into account legal arguments. The fundamental element of these legal arguments is constitutional interpretation, which serves as a parameter in determining constitutionality of the laws. However, in exercising its authority, the Court needs to interpret the Constitution as a basis for deciding a case. The standards for determining the constitutionality of a law must be the text of the Constitution, not what the judges would prefer the Constitution to mean. Constitutional supremacy necessarily assumes that a superior rule is what the Constitution says it is, not what the judges prefer it to be. [Craig R. Ducat: E3]. The Court period 2003–2008 were the Court’s the formative years, and as such are important to understand the methodology and interpretative approaches adopted by the Court. Many observers of the Court’s early decisions are still unsure of the overarching approach and methodology adopted by the Court. Thus, there is a need for a close analysis and criticism of the Court’s early decisions to determine which methods and approaches it has adopted and whether these are appropriate in the Indonesian context. The Court has openly referred to the experiences of foreign jurisdiction in constitutional law, and therefore it would be appropriate to analyze the court’s decisions in a broader comparative context of constitutional interpretative approaches from around the world.]]>
<![CDATA[Convergence or Borrowing: Standing in The Indonesian Constitutional Court ]]>
<![CDATA[Stefanus Hendrianto]]>
<![CDATA[ Constitutional Review Vol 1, No 1 (2015) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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Full PDF (213.099 KB)
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DOI: 10.31078/consrev112
<![CDATA[This Article addresses the constitutional convergence theory by examining the standing rule in the Indonesian Constitutional Court. The central investigation of this paper is whether the application of standing doctrine in the Indonesian Constitutional Court is evidence of constitutional convergence or of borrowing? This paper argues that the Constitutional Court jurisprudence on standing indicates that constitutional convergence has never taken place but rather the Court has engaged in constitutional borrowing. Legal borrowing on standing is limited to the carbon copy of the five-prong standing tests of the U.S. model, but in reality standing doctrine in the Indonesian Constitutional Court is not based on the private rights model of adjudication. Although the Court allows individuals to bring cases before the Court, it is rather a quasi-public model of standing, in which claimants no longer have standing only to vindicate their own private rights but can also sue to vindicate public interests. Standing requirements also allow the judges to review many highly sensitive political cases, and to some extent it enables the Court to second guess the decisions of the different branches of government.]]>
<![CDATA[The Role of the Indonesian Constitutional Court for An Effective Economic, Social and Cultural Rights Adjudication ]]>
<![CDATA[Heribertus Jaka Triyana]]>
<![CDATA[ Constitutional Review Vol 1, No 1 (2015) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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Full PDF (304.242 KB)
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DOI: 10.31078/consrev114
<![CDATA[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.]]>
<![CDATA[The Constitutional Court’s Role in Consolidating Democracy and Reforming Local Election ]]>
<![CDATA[Iwan Satriawan]]>;
<![CDATA[Khairil Azmin Mokhtar]]>
<![CDATA[ Constitutional Review Vol 1, No 1 (2015) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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Full PDF (234.1 KB)
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DOI: 10.31078/consrev115
<![CDATA[Within the same group as the USA and India Indonesia is one of the largest democracies in the world. After experiencing authoritarian rule for a few decades since its independence the country finally at the beginning of the twenty first century managed to chart along its new direction along democratic course and values. More than a decade has passed since the democratic transition begun yet the country still faces various constitutional dilemmas and enigmas. One of organs of the government which has been entrusted to transform the country into a democratic nation is the Constitutional Court. The objective of this paper is to provide critical analyses of the role of the Constitutional Court of Indonesia in the process of consolidating local democracy. The scope of analysis is confined to a number of important cases heard by the court on local election disputes from the year 2008 to 2013. The rationale to focus on local election is because local government provides the second layer of government for this unitary country making the governance more democratic and more in touch with local population. The result of the study is the Constitutional Court through its decisions has created conducive political situation and has provided significant contributions in the process of consolidating local democracy. In spite of limited number of judges and short period of settlement to disputes brought before it the Court have settled all disputes regarding local elections without much delay and complaint. Nevertheless there are some areas that need to be addressed by the court to enhance its efficiency and effectiveness. A few factors have been identified to be the cause of the problems namely problem of design of structure of the Court, extension of the scope of authority, period of settlement, over-dosis of authority and the breach of code of ethics of the judges.Thus it is recommended that in order to perpetuate the excellent achievements of the court the institution need to be strengthened by addressing the problems.]]>
