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Constitutional Review

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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.

Arjuna Subject : -

Articles 164 Documents

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A Comparative Perspective on Constitutional Complaint: Discussing Models, Procedures, and Decisions M. Lutfi Chakim
Constitutional Review Vol 5, No 1 (2019)
Publisher : The Constitutional Court of the Republic of Indonesia

The constitutional complaint is one of the important constitutional court jurisdictions that can be described as a complaint or lawsuit filed by any person who deems his or her rights has been violating by act or omission of public authority. Currently, the constitutional court in many countries have adopted a constitutional complaint system in a variety of models. However, the first application of the constitutional complaint jurisdiction came from Europe. In Austria, the constitutional complaint is allowed against the administrative actions but not against the court decisions. While Germany and Spain have a similar model that is a complaint against an act of the public authority including court decisions. In Asia, it is imperative that the court in Asia actively participate in the Association of Asian Constitutional Courts and Equivalent Institutions (AACC). The AACC members have adopted a system of constitutional adjudication in a variety of models, and when it comes to jurisdictions, out of sixteen AACC members, there are four countries (Azerbaijan, South Korea, Thailand, and Turkey) have the constitutional complaint in their jurisdictions. In Azerbaijan, constitutional complaint is comparatively broad. Azerbaijan’s Constitutional Court can handle constitutional complaint against the normative legal act of the legislative and executive, an act of a municipality and the decisions of courts. In contrast, even though constitutional complaint in South Korea and Thailand can be against the exercise and non-exercise of state power, constitutional complaint cannot be filed against court decisions. In Turkey, the constitutional complaint mechanism is coupled with the regional system of human rights protection. The Turkish Constitutional Court handles complaints from individuals concerning violations of human rights and freedoms falling under the joint protection of the Turkish Constitution and the European Convention on Human Rights (ECHR). This paper argues that constitutional complaint represents the main part of the constitutional court, and through a comparative perspective among three countries in Europe and four AACC members are expected to provide lessons for the other AACC members that do not have a constitutional complaint mechanism, such as Indonesia.

The Malaysian Federal Constitution: An Islamic or a Secular Constitution? Syed Fadhil Hanafi Syed A. Rahman
Constitutional Review Vol 5, No 1 (2019)
Publisher : The Constitutional Court of the Republic of Indonesia

Constitutionalism dictates that the government must only act within the four walls of the constitution. While adherence to this fundamental doctrine is proven to be difficult, it becomes more complicated when the walls are unclear. For decades, Malaysians struggle to ascertain the actual legal value of religion, particularly Islam, in its Federal Constitution and the impact of religion to the Malaysian legal system. Some opined that secularism is a basic structure of the Malaysian Federal Constitution and in the name of constitutionalism, religious laws cannot be the basis for administration of public law and must be confined to personal law matters. On the other hand, some opined that Islam constitutes a salient feature of the Constitution and the position of Islam as the religion of the Federation implies Malaysia as an Islamic state. This paper analyses the conflicting views, via qualitative studies of constitutional provisions which have religious element in the light of their history, together with relevant case laws which interpreted them. The analysis is done with a view to determine whether the Malaysian Federal Constitution is a secular instrument creating a secular state or a religious document establishing a theocratic state. From such analysis, the author presents that the Malaysian Federal Constitution, albeit giving special preference to Islam, is a religion-neutral document which is receptive to both religious and secular laws. This is based on the fact that the Constitution upholds the validity of both secular and religious laws for as long as they are enacted according to procedural laws required by the Constitution.

The Return of Pancasila: Political and Legal Rhetoric Against Transnational Islamist Imposition Yance Arizona
Constitutional Review Vol 5, No 1 (2019)
Publisher : The Constitutional Court of the Republic of Indonesia

The rise of transnational Islamist movements in Indonesia in the last two decades recurrences the old debate between Pancasila and Islamism. This kind of fundamental Islamic movements widespread with their conservative view and it has had detrimental effects on the Indonesian society’s social cohesion. President Joko Widodo seeks to revive Pancasila to confront this threat. This is not for the first time Pancasila is used by the Indonesian government to resolve the tension between Islamic values and nation-state principles. Both President Sukarno and Suharto also used Pancasila as a vehicle to discipline their political opponents. Adopting a non-essentialist approach to Pancasila, I argue that the return of Pancasila in recent years would be more complicated because of the narrative of Pancasila revivalism as an adversarial ideology is bounded by traditionalism and lack of progressive interpretation. Instead of locating Pancasila as the counterpart to Islamism, what is needed is re-interpretation of Pancasila as a unifying ideology.

Judicial Preview on the Bill on International Treaty Ratification Noor Sidharta; Sudarsono Sudarsono; I Nyoman Nurjaya; Bambang Sugiri
Constitutional Review Vol 3, No 1 (2017)
Publisher : The Constitutional Court of the Republic of Indonesia

This research is aimed to find and introduce a new idea on the state administration, which has implications on the international treaty ratification procedure followed by Indonesia and additional authorizations of the Constitutional Court of the Republic of Indonesia. The judicial preview in this research is an international treaty examination procedure by the Constitutional Court before an international treaty is transformed into a law, i.e. such international treaty is a Bill. The judicial preview shall have different terms in each country, such as Review ex ante, abstract review, judicial review. This procedure is applied when an international treaty has not been validated as a country’s national law. The benefits of a judicial preview shall be a solution to connect an ambiguity between the state administrative law and international law. The judicial preview is also the inter-state institutions real check and balance on the international treaty. Out of benchmarking results of four countries following the monism doctrine, i.e. Russia, Germany, France, and Italty and two countries following the dualism doctrine, i.e. Hungary and Ecuador, several additional authorizations of the Constitutional Court shall be summarized, i.e. via the Amendment of 1945 Constitution of the Republic of Indonesia and/or regulations via laws. If both manners are not possible, the Constitutional Court may apply the judicial preview as a state administrative practice. An international treaty draft, which has passed through the judicial preview, may not be submitted to the Constitutional Court to be performed a judicial review, unless 5 (five) year-period has passed since the bill is enacted as a law.

Constitutional Complaint and the Protection of Citizens the Constitutional Rights I Dewa Gede Palguna
Constitutional Review Vol 3, No 1 (2017)
Publisher : The Constitutional Court of the Republic of Indonesia

Constitutional complaint is one of important issues to be dealt with by severral countries issues adopting constitutional court in their national legal system and the Federal Constitutional Court Germany (Bundesverfassungsgericht) is considered by expert as one of the most advance mechanism among countries in dealing with the issue. Generally speaking, constitutional complaint can be described as a complaint or lawsuit filed by an individual citizen who deems his or her constitutional right (s) has been violates by act or omission of public institution or public official. Mostly, such a complaint can only be filed it theere is no other legal remedy available or all legal remedies available have been exhausted. The Constitutional Court of The Republic of Indonesia however is not entrusted with authority to hear constitutional complaint case not withstanding the fact that statistical data on judicial review cases filed by many petitioners before the Court were substantially constitutional complaint issues. It means that, empirically giving the Court to hear constitutional complaint case is necessarily pivotal and theoritically, the Court has the very foundation to be entrusted withq such authority. Considering the complex mechanism to amend the Constitution of 1945, which exhaustively deserible the court’s authorities, this article offers the lawmaker a theoretical insight tio give the Court a limited authority to hear constitutional complaint case by the way of amending the law on Constitutional Court.

Reconstruction of Ethics Supervision System Towards Constitutional Court Justice Wiryanto Wiryanto; Moch Bakri; Masruchin Ruba’i; Prija Djatmika
Constitutional Review Vol 3, No 1 (2017)
Publisher : The Constitutional Court of the Republic of Indonesia

Ethics supervision of constitutional justices is an important issue for the development of ethics supervision system in the Constitutional Court, because the supervision of constitutional justices is a means of maintaining the independence and impartiality of constitutional justices, which is in fact the main pillar of an independent judiciary. In its development, there has always been a debate about the ethics supervision of the constitutional justices, whether the justices should be overseen externally or internally. This is because, juridically, the law does not regulate it clearly. Based on the above background, the research issues drawn are: (1) What is the significance of ethics supervision toward constitutional justices ?; (2) What is the system of ethics supervision of constitutional justices according to Indonesia’s current positive law, (3) How to reconstruct the system of ethics supervision of constitutional justices more optimally in the future? Based on the result of the research entitled “Reconstruction of Ethics Supervision System toward Constitutional Justice”, the following conclusions are obtained: (1) Based on philosophical, juridical and empirical perspective, ethics supervision of constitutional justices has important meaning in order to maintain and uphold the honor, dignity, and the behavior of constitutional justices. (2) Based on the analysis of the evolution of the ethics supervision system, the result shows that the ethics supervision system toward constitutional justices which is always changing indicates that there is still no standard system as a guideline for the enforcement of alleged violation of ethics against the constitutional justices. Therefore, there is a need for normative reconstruction of the ethics supervision system toward constitutional justices through legislation. (3) The reconstruction of the ethics supervision system toward constitutional justices can be done through: a. Amendment to the 1945 Constitution by adding a new norm governing the provision on ethics supervision system toward constitutional justices, b. Amendment to the Constitutional Court Law.

The Constitutional Will In Human Rights Protection For Refugees Oly Viana Agustine
Constitutional Review Vol 3, No 1 (2017)
Publisher : The Constitutional Court of the Republic of Indonesia

Human rights protection granted to refugees in Indonesia has not received serious attention, in particular for those who are included in the cross-border refugees. This issue is a question of how the Constitution mandates a protection to them, whether it is an obligation of the government of Indonesia or it is volunteerism alone. The provisians are addressed in Article 28A, Article 28B paragraph (2), Article 28D paragraph (4), Article 28E paragraph (1), Article 28G paragraph (2), and Article 28H paragraph (1), and Article 28J paragraph (1), Broadly speaking, the Indonesian constitution calls for better protection of refugees to internally displaced persons and refugees across borders. This is reflected in several articles in the 1945 Constitution that mention the word “everyone” in the subject which meant regardless of citizenship status or population. This is certainly in line with the values of human rights that have been recognized along with the universality of human rights that are applicable. Therefors the will of the constitution on refugees needs to be implemented in legislation in Indonesia, which describes in details the human rights protection to internally displaced persons and refugees state that the will of the constitution in the protection of human rights to refugees be implemented correctly.

Indonesian Chinese Diaspora, Dual Citizenship And Indonesian Development Tundjung Herning Sitabuana
Constitutional Review Vol 1, No 1 (2015)
Publisher : The Constitutional Court of the Republic of Indonesia

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.

Bosnia-Herzegovina: The Role of the Judiciary in a Divided Society Joseph Marko
Constitutional Review Vol 5, No 2 (2019)
Publisher : The Constitutional Court of the Republic of Indonesia

This paper analyzes the role of the Constitutional Court of Bosnia and Herzegovina for the promotion of social justice under the conditions of a triple transformation from war to peace and from a communist regime based on the Titoist self-management ideology to a liberal-democratic political regime and economic market system in three parts. The first section describes the political, constitutional and economic context during and after the collapse of the former Socialist Federal Republic of Yugoslavia and the war in Bosnia-Herzegovina. The second section describes and analyzes the constitutional and institutional arrangements established under the General Framework Agreement for Peace, concluded in Dayton/Ohio and Paris, 1995. The third section deals with the role of the Constitutional Court and analyzes with reference to its case law the interpretative doctrines developed in its adjudication of the right to property concerning different concepts of property and the right to work in the context of the constitutionally guaranteed right to return of refugees and restitution of property.

A Commentary: the Inadmissibility of Non-Indonesian Citizens in Judicial Review before the Indonesian Constitutional Court Bayu Mahendra
Constitutional Review Vol 3, No 2 (2017)
Publisher : The Constitutional Court of the Republic of Indonesia

The Constitutional Court of Indonesia, in its judgment No 2-3/PUU—V/2007, ruled that non-Indonesian citizens have no legal standing to file judicial review before the Court. In determining the legal standing, the Court rejected applicants’ constitutional loss which should actually serve as the substantial examination in judicial review but rather addressed this question on the basis of applicant’s citizenship. This inadmissibility ruling, however, raises question on what legal standing actually mean in the context of judicial review. This paper reviews the Court’s consideration in determining legal standing status and examines future legal consequences of such reasoning. By revisiting the substance of legal standing and judicial review derived from the 1945 Constitution, relevant Statutes, Court’s practices and case law, as well as the dissenting opinion of the judges in this case, it is found that the Court overruled the substance to procedural examination on the basis of citizenship and therefore failed to address the actual question of legal standing. This paper concludes that the Court’s reasoning has abandoned the constitutional loss as the very substance of legal standing and to which amounts to immunity of legal standing provision from a judicial review. Consequently, non-Indonesian citizens will never be recognized in judicial review mechanism before the Indonesian Constitutional Court.

Page 10 of 17 | Total Record : 164

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Contact Name
Pan Mohamad Faiz

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Pan Mohamad Faiz

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Journal Mail Official
consrev@mahkamahkonstitusi.go.id

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Location
Kota adm. jakarta pusat,

Dki jakarta

INDONESIA