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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 8 Documents
 1 
Search results for , issue "Vol. 10 No. 2 (2024)" : 8 Documents clear
The Rejection of the Voice for Aboriginal People in Australia – A Postmortem of Causes of Failure Bertus de Villiers
Constitutional Review Vol. 10 No. 2 (2024)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev1021

Abstract

On 14 October 2023, the Australian electorate rejected by an overwhelming majority a proposal for a constitutionally guaranteed advisory body, to be called the Aboriginal and Torres Strait Islander Voice. This was the fourth attempt in Australia to create an advisory voice for Aboriginal people, but the first time it was attempted via a constitutional amendment involving a public vote. The rejection is continuing to reverberate through Australian society. To many Aboriginal people this was not only a rejection of a technical proposal, but a rejection of their aspirations of self-determination. This article reflects on some of the root causes why in the view of the author, the referendum failed. The article is critical of the lack of information about the composition and functions of the proposed Voice as well as the inconsistencies between various reports and public documents. These contributed to public scepticism and rejection of the proposal.
Threat to Indonesia’s Constitutional Court Independence Posed by Religious Populist Movements and its Implication Towards Human Rights Cekli Setya Pratiwi
Constitutional Review Vol. 10 No. 2 (2024)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev1022

Abstract

One of the biggest challenges to a democratic state under the rule of law today is rising populist movements that endanger the independence of the judiciary. In Indonesia, the religious populist movement led by hardliner Islamic groups continues to try to enter courtrooms to advocate for religious interpretations of court decisions, such as when the Indonesian Constitutional Court reviews the 1965 anti-blasphemy law. This socio-legal research examines empirical data from key resource interviews and secondary data from related Constitutional Court judgements, pertinent legislation, and public policies to determine the socio-political backdrop of the Court decision. This technique enables the author to evaluate religious populism and how it affects Constitutional Court rulings. Political pressure may weaken the court, according to this research, encourage the religious populism of the former of Islamic Defenders Front to impose its will by stating that the repeal of the Anti-Blasphemy Law shows strong indications of corruption within the Court. Religious populism in the justice system raises concerns about political or religious decision-making, thereby undermining the rule of law. This research shows that the pattern or tendency of religious populism shows the Court’s compromise of the legal system towards democratic government in Indonesia, eroding the independence of the judiciary, endangering the right to religious freedom, and weakening public confidence in the justice system and democracy.
Weak-Form Review and Judicial Independence: A Comparative Perspective Mirza Satria Buana
Constitutional Review Vol. 10 No. 2 (2024)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev1023

Abstract

This article examines the Court’s judicial review power that has gradually shifted from a strong-form review into a weak-form review. The shifting into weak-form review may affect judicial independence, both de facto or de jure, because Justices have considered the Legislature’s responds on the Court’s decisions. This approach diminishes the Court’s supremacy toward lawmakers. This article explores comparative insights from various countries that utilize those reviews, notably the United States of America (strong review), and commonwealth countries (weak review). It also elaborates on some ‘anomalies’ from both reviews. It raises two important questions: what insights can be learned from other countries’ judicial practices, particularly on the use of weak- form review? And, does weak-form review suitable to be enforced in Indonesia’s context? The weak review that is manifested in conditional decisions claims to be more politically palatable. Despite that strategic reason, the practice of conditional decision is prone to misuse as it could decrease constitutionalism and judicial independence. This paper argues that the weak-form review is not suitable for Indonesia’s constitutional law context, because the country lacks prerequisites and preconditions of strong control through parliament. The Indonesian Constitutional Court must return to its genuine authority as a strong-form review to strengthen legal constitutionalism.
The Relationship Between the Constitutional Judges’ Selection by the House of Representatives and The Position of Judges in Judicial Review Decisions Muchamad Ali Safa’at; Aan Eko Widiarto; Haru Permadi; Muhammad Dahlan
Constitutional Review Vol. 10 No. 2 (2024)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev1024

Abstract

The two issues raised in this study are the selection mechanism for constitutional judges nominated by the House of Representative (DPR) and the correlation between the selection of constitutional judges nominated by the DPR and the position of the judge in the decision to review the law. This research analizes the position of the constitutional judges on 8 judicial review decision which correlated to the authority and interests of the DPR. Judges who are nominated through a highly transparent and participatory selection process or a transparent and participatory process may rule in favor of or against the interests of the DPR. However, judges who are nominated through a selection process that is not transparent and participatory will all make decisions in favor of the interests of the DPR. That finding show that the judge nominated through a highly transparent and participatory selection process tends to be more independent than the judge nominated through less transparent and participatory selection process.
The Removal of the Constitutional Chamber Justices in El Salvador: A Story About the Fragility of Judicial Independence Manuel Adrián Merino Menjívar
Constitutional Review Vol. 10 No. 2 (2024)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev1025

Abstract

The work discusses a significant event that occurred on May 1, 2021, when the Legislative Assembly of El Salvador removed the Justices of the Constitutional Chamber of the Supreme Court of Justice before their term expiration, violating legal procedures. This action was facilitated by a combination of populist rhetoric from the President and abuse of power by the Legislative Assembly. Referred to as Constitutional Authoritarian-Populism, this trend undermines the rule of law. The text outlines the Salvadoran constitutional framework and discusses concepts like judicial independence, populism, abusive constitutionalism, and authoritarianism in the Latin American context. It then examines instances of Constitutional Authoritarian-Populism in El Salvador from 2019 to 2023, demonstrating that the removal of the Justices wasn’t spontaneous. Finally, it analyzes the process of removal, the response from the removed Justices, and the subsequent decision by newly appointed Justices to authorize presidential re-election in El Salvador.
Constitutional Court Regression in Post- Democratic Transition: A Comparison of Court Packing in Hungary, Poland, and Indonesia Idul Rishan
Constitutional Review Vol. 10 No. 2 (2024)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev1026

Abstract

Over the past two decades, the constitutional court established in the post-democratic transition has begun to face regression. The Constitutional Courts in Hungary, Poland, and Indonesia have evidence, carried out intensively through court packing. This article investigates the regime’s undermining of the constitutional court against constitutional judges in selected countries. In addition, this article will also describe the regime’s motives and objectives in undermining the independence of the constitutional court. This study argues that regression of the constitutional court occurs through several patterns, such as increasing and decreasing the number of constitutional judges, politicizing the appointment and dismissal of constitutional judges, and rearranging the requirements and selection procedures of constitutional judges. The regime uses court packing to place judges who are loyal or have the same political preferences as the regime to provide control over their independence.
Universality of Rights as an Interpretive Principle for the Indonesian Constitutional Court Titon Slamet Kurnia; Ninon Melatyugra
Constitutional Review Vol. 10 No. 2 (2024)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev1027

Abstract

This article discusses issues regarding constitutional interpretation in general, and the interpretation of human rights provisions in the constitution in particular. The setting of the discussion is the role of the Constitutional Court of Indonesia in reviewing the constitutionality of laws based on Chapter XA of the 1945 Constitution. Constitutional interpretation is pivotal in deciding the constitutionality of laws. Therefore, this article aims to propose an interpretive principle to the Constitutional Court when interpreting human rights provisions in deciding the constitutionality of laws. The interpretive principle is the universality of rights. In other words, this article suggests the Constitutional Court adopt the universality of rights principle in interpreting Chapter XA of the 1945 Constitution. The principle of universality of rights departs from the understanding that human rights are natural rights. The interpretive principles that can be derived from the principle of universality of rights are as follows. First, recognition of unenumerated rights. Second, minimalization of the exercise of human rights limitation norms. Third, prioritization of protection of minorities. Fourth, encouraging the use of comparative approach in interpreting constitutional human rights norms. These interpretive principles are discovered through a comparative approach, in this case referring to judicial practices in other countries as well as regional and international judicial bodies that are considered relevant. The rationale behind this proposal is that human rights interpretation using the universality of rights principle can enhance the protection of human rights. Suppose judicial review of the constitutionality of laws is dedicated to enhancing human rights. In that case, constitutional interpretation should be dictated by the universality of rights principle as the interpretive principle.
Initiating Constitutional Morality: Political Intervention, Ethical Reinforcement, and Constitutional Court Decisions in Indonesia Annisa Salsabila; Tria Noviantika; Ahmad Yani
Constitutional Review Vol. 10 No. 2 (2024)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev1028

Abstract

Constitutional morality is essential for the branches of power (Parliament and Government) to ensure impartiality, political insularity, and institutional stability for the judicial power, especially the Constitutional Court and constitutional morality as a guide and benchmark for constitutional judges to form ethics and decisions that reflect the Constitution. This article seeks to answer crucial questions about how forms of intervention and ethical problems in the Constitutional Court do not reflect constitutional morality and how the idea of limiting intervention and strengthening the ethics and decisions of the Constitutional Court through constitutional morality. The author uses normative legal research methods with statutory, conceptual, comparative, and case approaches. The results of this study are in line with the hypothesis of the argumentation that the author builds, showing that the lack of application of constitutional morality by Parliament, Government, and Constitutional Court Judges has threatened the independence of the Constitutional Court, has damaged the judicial dignity of the Constitutional Court, and making the Constitutional Court a means of political insurance. Several cases have shown that parliamentary and government intervention in the Constitutional Court is inevitable. Likewise, ethical violations and decisions of the Constitutional Court that do not reflect the Constitution add to the complexity of the current problems of the Constitutional Court. For this reason, the author recommends that the elaboration of the concept of limiting intervention and strengthening the ethics and decisions of the Constitutional Court can be accomplished in several ways, including statutory provisions regarding the prohibition of conflicts of interest and the ethics of state administrators, the construction of ethical institutions/courts as external institutions in enforcing and supervising ethics, reconstructing the process of selecting and dismissing constitutional judges fairly and transparently by involving public oversight, and guaranteeing and legitimizing the Constitutional Court in exercising administrative and financial autonomy independently.

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