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Constitutional Review
Published by Mahkamah Konstitusi Republik Indonesia
ISSN : 24600016     EISSN : 25483870     DOI : -
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice Social Sciences
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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Articles 6 Documents
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Search results for , issue "Vol 8, No 1 (2022)" : 6 Documents clear
Affirmative Action Study on the Political Rights of Women in the Indonesian Constitution Malika Rajan Vasandani; Dwi Putra Nugraha; Susi Susantijo
Constitutional Review Vol 8, No 1 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev813

Abstract

As the world’s third largest democracy, Indonesia’s governmental system should ideally function as a government of the people, by the people, for the people, to borrow the famous words of Abraham Lincoln. In reality, the House of Representatives of the Republic of Indonesia, an institution which should best represent the nation’s people in carrying out its duty of drafting legislative products, still fails to do so, as it is dominated by men. Deep-rooted patriarchal beliefs cloud the nation, while inadequate and inefficient laws have also contributed to the present situation of low female representation in politics. This article therefore looks into the effectiveness various laws and regulations intended to protect women’s political rights. It assesses the effect of the low participation of women on the quality and gender-sensitivity of laws passed by the House of Representatives. It also evaluates the urgency to introduce affirmative action policies through the 1945 Constitution to increase women’s participation rates. The authors have used the normative-empirical method, consisting of a statutory, conceptual and comparative approach. Materials used for this research include interviews with prominent figures, analysis of the law and a comparative study. Through this approach, the article concludes that prevailing regulations in Indonesia require improvement, as there needs to be a shift from the present quota system to a system of reserved legislative seats in order to reap the benefits of equal participation.
The Roles of the Indonesian Constitutional Court in Determining State-Religion Relations Muchamad Ali Safa'at
Constitutional Review Vol 8, No 1 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev815

Abstract

Indonesia is neither a religious state nor a secular state. Based on the Pancasila state ideology and the 1945 Constitution, Indonesia adheres to a symbiotic model in which the state and religion are different entities but have a mutually influencing relationship. This relationship pattern can be seen from several laws that regulate issues related to religion, especially Islam, which is embraced by the majority of Indonesians. As a political product, the pattern of relations between the state and religion in the law is dynamic. However, in accordance with the principles of a democratic rule of law, the dynamics of democratic politics are controlled by legal instruments, one of which is through the authority to review laws as one of the powers of the Constitutional Court. The Constitutional Court’s decisions in cases of judicial review of laws related to religion reinforce the model of the symbiotic relationship between the state and religion. Such decisions affirmed Pancasila as a model of Indonesian secularity that is needed for the sake of individual rights and freedoms, to balance or reconcile religious diversity, social integration and national development, and the independent development of the functional domains of society.
The Development of Islam and Democracy in Indonesia Hamdan Zoelva
Constitutional Review Vol 8, No 1 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev812

Abstract

Islam and democracy are two inseparable parts of social and political life in Indonesia. Textually, democracy itself does not exist in the Islamic Holy Qur’an or the Hadith (Prophet Muhammad’s words and actions). However, implicitly and substantially, the basics of democracy are in the teachings of Islam, both in the Qur’an and the Hadith. The principles of Islamic teachings, such as equality, deliberation, cooperation (ta’awun), and good habits (taghyir), are compatible with democratic values. In addition, many idioms that form the basis of ethics and morals in society are generally derived from the experience of the Prophet Muhammad, correlating with the basic principles of modern democracy. In the context of Indonesia, it is undeniable that Islam has contributed to the climate of democratization. This further confirms that Islam is not against democracy. Both support each other.
The Constitutional Struggle for Religious Freedom: A Comparative Study of India and Indonesia Neha Tripathi; Anubhav Kumar
Constitutional Review Vol 8, No 1 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev811

Abstract

Constitutions tend to regulate the relationship between religious and state authorities. Before the rise of the modern state, it was difficult to make proper distinctions between law, religion and morality. With the emergence of Western liberalism, the concept of democracy and secularism gained newfound attention, becoming ingrained and in tune with modern constitutional frameworks. Establishing the relationship between state and religion is a thorny issue for constitution-makers. Opponents of constitutional recognition of religion view religion as a private matter, relating to personal beliefs and conscience. This paper studies the comparative constitutional frameworks of India and Indonesia in relation to the right to religious freedom. As vibrant democracies comprised of ethnically diverse populations, both India and Indonesia grapple with issues concerning religious majorities and minorities. In India, Hindus are the majority, then Muslims, Christians, Sikhs and Buddhists; whereas in Indonesia, Muslims are the majority, then Christians, Hindus and Buddhists. Both India and Indonesia have ratified the International Covenant on Civil and Political Rights. The judgments of the constitutional courts in these countries have prompted constitutional law scholars to analyze the status of constitutionally recognized freedom of religion and its enforceability. This article first studies the relationship between state and religion in the contemporary sphere, thereby engaging in a comparative study of the formation of constitutional provisions in relation to religious freedom in India and Indonesia. Second, it aims to establish the importance of religious freedom within a constitutional framework. Third, it will discuss the issues surrounding recognition and enforcement of religious freedom in India and Indonesia, as well as providing an analysis from the perspective of majoritarianism and religious intolerance. Fourth, it will analyze landmark judgments of the constitutional courts of India and Indonesia in formulating and establishing the basic tenets of religious freedoms in the two nations. The role of the judiciary and governmental institutions in dealing with issues of religious freedom remains a central question in democratic countries such as India and Indonesia. Keeping in mind the need for a more holistic study and contributing to the literature in this area, the authors will present a comparative analysis of religious freedom in both these nations for nuanced understanding of religious rights and their interplay with the respective constitutions.
Unmasking the Devil: The Role of the Civil Court and Islamic Religious Authorities in the Battle Against Religious Extremism and Terrorism in Malaysia Khairil Azmin Mokhtar
Constitutional Review Vol 8, No 1 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev814

Abstract

This paper sets out to examine the role of the court and the Islamic religious authorities in fighting religious extremism and terrorism in Malaysia. The judiciary has obligations to protect the people, to guarantee freedom and to dispense justice. It is the constitutional duty of the Islamic religious authorities to preserve the religion, to safeguard the Muslim and to insulate the teachings of Islam in Malaysia. Under the federal constitutional framework of the country, civil court and federal government do not deal with religious matters because it comes under the jurisdiction of Syariah laws and Syariah court of the states. However, in order to combat religious extremism and terrorism under the pretext of Islam, the demarcation of constitutional power and jurisdiction between federal and state governments is obscured. The federal government which has exclusive legislative and executive powers over criminal matters, public order and security have to collaborate with the Islamic religious authorities of the states in encountering threats coming from religious extremists and terrorists’ groups. Although laws, policies, and agencies relating to internal security, public order and crime are under the jurisdiction of the federal government, the ideological, theological, and philosophical dimensions of religious extremism and terrorism have to be dealt with by the Islamic religious authorities of the states. The civil court on a few occasions faced with challenging tasks of upholding rights of those accused of religious terrorism while at the same time preserving public order, peace, and security of the country. This is a qualitative research which involves legal study and analysis of primary materials including constitutions, legislations, emergency ordinances and court cases, and secondary materials such as books, articles and expert opinions. The symbiosis of federal authorities especially the civil courts, with the Islamic religious authorities of the states is the focal point of this paper. To counter the terrorists’ threats and combat the spreading of the dangerous extremists’ ideologies the court and the Islamic religious authorities need to have mutual understanding and establish cooperation in achieving the common goal. Only then the fight against religious extremism and terrorism in Malaysia is sustainable and effective.
Fake News and Internet Shutdowns in Indonesia: Symptoms of Failure to Uphold Democracy Rofi Aulia Rahman; Shu-Mei Tang
Constitutional Review Vol 8, No 1 (2022)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev816

Abstract

The Indonesian government limited or shut down internet access during separate riots in Jakarta and Papua in 2019. The justification for blocking the internet and disabling certain features of social media platforms was to quell the unrest by ceasing the spread of fake news. Nevertheless, the government did not declare a state of emergency in response to either situation, triggering debate on whether the internet restrictions had any strong constitutional basis or if they were out of proportion and unconstitutional. This study evaluates the government’s policy on internet shutdowns to reduce the spread of fake news amid riots, and explicates when the state of emergency “feature” might be activated. The research method of this article is a doctrinal legal approach, which critically examines whether the government policy was excessive, and to what extent a state of emergency can be implemented by minimum standard requirements. The result of this study shows the riots in Jakarta and Papua ought not be categorized as national threats; hence, the internet shutdown was out of proportion. Fake news is part of the price we pay for a free society; thus the article argues that an internet shutdown is not a proper way to combat fakenews. Furthermore, the government has failed to fulfill the minimum standards to justify the internet shutdowns. Access to the internet is a new face of democratic pillars, so blocking internet access without any sufficient legal instruments and correct constitutional interpretation might indicate symptoms of a failure to uphold democracy. 

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