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.
Articles
164 Documents
<![CDATA[Protection of Socio-Economic Rights by the Constitutional Court of the Russian Federation ]]>
<![CDATA[Svetlana Karamysheva]]>
<![CDATA[ Constitutional Review Vol 6, No 1 (2020) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev611
<![CDATA[The article studies practice of the Constitutional Court of the Russian Federation in the field of socio-economic rights. The statistical data analysed illustrates the ever-present socio-economic theme among constitutional complaints lodged with the Constitutional Court, with the lowering of overall proportion of such complaints and increasing of the number of such complaints related to defence of property. Such statistics appear to be consistent with the Court’s role in the ongoing transition from Soviet-style planned economy to free market, which implies a substantial shift of obligations connected with property management and social responsibilities from the State to citizens themselves. It follows from the Constitutional Court practice and doctrine that such shift should be done delicately, giving the citizens sufficient period of time to adapt to the changes. In the article, the author focuses on the following categories of complaints considered by the Constitutional Court of the Russian Federation: protection of the right to private property and protection of the right to pension provision. The author observes that the delicate balance that needs to be preserved when dealing with the cases of this type and the slow-pace nature of the transition process often results in criticism towards the Court, notwithstanding the rationale of its decisions. It follows that such criticism is somewhat natural; what matters is the Court’s understanding of its mission in the socio-economic field, and maintaining balanced and well-reasoned approach in development of its case-law.]]>
<![CDATA[Legal-Political Paradigm of Indonesian Constitutional Court: Defending a Principled Instrumentalist Court ]]>
<![CDATA[Mirza Satria Buana]]>
<![CDATA[ Constitutional Review Vol 6, No 1 (2020) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev612
<![CDATA[The establishment of the Indonesian Constitutional Court in 2003 signified the formation of a bridge between the judiciary and politics. Through its judicial review process, there is a more tangible presence of the judiciary and court in the political arena. The Court helps with addressing moral predicaments and influencing the products of the legislature. This paper discusses the shifting of the legal-politico paradigm, particularly relating to judicial leadership of the Court because this significantly affects the role of the Court in the political arena. The history of the establishment of the Court’s authority in judicial review is explored through a stylised analysis of the actions of two early Chief Justices. This paper also examines two Court decisions which illustrated the Court’s authority on judicial review because they demonstrated the importance of policy-driven decisions and judicial restraint. The main argument of this work is that it is hard to categorize the legal-politico actions of the Indonesian Court into either legalism or instrumentalism. Often, the Court synthesises the two. The legal-politico paradigm is a dynamic one. The most feasible model of the Indonesian Constitutional Court is that of a Principled Instrumentalist Court, where policy decisions guide the formation of legislation according to constitutional values, but the judges maintain prudential self-restraint.]]>
<![CDATA[Against the Odds: Protection of Economic, Social, and Cultural Rights by the Constitutional Court of Ukraine ]]>
<![CDATA[Yurii Sheliazhenko]]>
<![CDATA[ Constitutional Review Vol 6, No 1 (2020) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev613
<![CDATA[The article traces historical development, doctrine, and impact of constitutional review in Ukraine related to matters of social justice. It is shown that international review of Ukraine’s reports on observance of human rights obligations indicated a low level of compliance during the absence of independent constitutional review by the judiciary. After the establishment of the constitutional review, the compliance was improved against all doubts, whether socio-economic rights are justiciable in the Ukrainian context, and whether the judges are empowered enough to reshape authoritarian policies. Constitutional Court of Ukraine developed a doctrine of social justice based on the values of the rule of law, liberty, and equality, founding a pragmatic balance between the imperatives of individual freedom and economic security. In legal reasoning, judges implemented ideas of the human-centered state and personal autonomy in civil society, close to liberal democratic views, expressed by framers of the Constitution of Ukraine.]]>
<![CDATA[Judicial Independence vis-à-vis Judicial Populism: the Case of Ulayat Rights and Educational Rights ]]>
<![CDATA[Rosa Ristawati]]>;
<![CDATA[Radian Salman]]>
<![CDATA[ Constitutional Review Vol 6, No 1 (2020) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev614
<![CDATA[Judicial populism may occur when judicial branches are much more influenced by the interest of people majority. In this context, it is when justices deliver decisions according to what the people wanted and not what it has to be decided by laws. The Constitutional Court of the Republic of Indonesia (MKRI) has the pivotal role to protect the Constitution, democracy, and the rule of law principles by adhering judicial independence in the decision making process. This paper aims to briefly find out whether the MKRI decisions on the particular issue of economic and social rights show the tendency of judicial populism and defending judicial independence. A brief conclusion would be drawn from the analysis of the two MKRI’s landmark decisions on the relevant issues of economic and social rights, in particular issues of Ulayat rights and educational rights (Case Number 35/PUU-X/2012 on the judicial review of Law No. 41 of 1999 on the Forest and Case Number No. 13/PUU-VII/2008 on the judicial review of Law No. 16 of 2008 on the Amendment of the Law No. 45/2007 on the State Budget). In a short analysis of both landmark decisions, the MKRI tends to defend its independence in delivering its decision. The Court also shows its consistency in protecting the Constitution by strictly upholding the constitutional values laid down in the Constitution and against the judicial populism. The Court in both decisions shows its constitutional commitment to preserving democratic values of minority-marginalized protection against the dominant-majoritarian interest. In the particular issue of education rights, the Court hinders the fulfilment of educational rights from the elite interest by preserving the constitutional purpose of making priority 20% for the education budget. In general, the MKRI has to guard preventing the Constitution and the rule of law principles, specifically on the issue of the protection of economic-social rights. It upholds judicial independence and put asides judicial populism.]]>
<![CDATA[Progressive Nature of Social and Economic Rights in Kenya: a Delayed Promise? ]]>
<![CDATA[Jennifer Gitiri]]>
<![CDATA[ Constitutional Review Vol 6, No 1 (2020) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev615
<![CDATA[This paper evaluates the steps taken towards the progressive realization of social and economic rights (SER) in Kenya. It aims to provide a better understanding of SER and the obligations of the state under international, regional, and national law. It further elucidates the components of progressive realization. Additionally, it identifies the guiding principles of measuring progressive realization and recommendations to develop tools that would monitor progressive realization. Recognition of SER faces many challenges as they are considered as second class rights that are not equal to civil and political rights considered as first-generation rights. The most enduring challenge for SER is that it interferes with the concept of the separation of powers and the political question doctrine by enabling courts to interfere in matters considered to be under the purview of the legislative and executive branch. The paper uses a desktop review of international, regional, and national legal instruments as well as comparative evaluation of SER jurisprudence from a host of jurisdictions. The concept of progressive realization is a goal in the ICSECR, Kenya’s Constitution, and other Constitutions with the implication that SER would be implemented over a period of time. Jurisprudence from other jurisdictions is evaluated to determine the lessons learned by Kenya. The paper demonstrates that progressive realization and implementation of SER are still work in progress before they are finally anchored into mainstream human rights, just like political and civic rights. In conclusion, progressive realization of SER imports an immediate obligation by Kenya having ratified the three human right bodies (ICSECR, UNCRC, and CRPWD) pursuant to Article 2(5)(6) of the Constitution to expeditiously move towards the realization of SER. There is a further presumption that the country would refrain from retrogressive measures and instead adopt the minimum content approach in the implementation of SER.]]>
<![CDATA[The Regime's Violation of the Right to Property in the West Bank, Palestine: Rawabi Project as a Case Study ]]>
<![CDATA[Osayd Awawda]]>
<![CDATA[ Constitutional Review Vol 6, No 1 (2020) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev616
<![CDATA[The purpose of this paper is to assess the Palestinian Constitutional Court's reasoning of its judgment in Rawabi Case, a case in which the Government's expropriation of a large area of privately-owned land was challenged before the Court. The expropriation was to transfer the ownership of that land to Bayti Real Estate Investment Company, a private company that later on built the first planned city in Palestine: Rawabi. This paper explains what implications the judgment in this case has on the relationship between the regime and other major private investors in the West Bank. The paper starts with explaining how some constitutional courts perform the function of providing credible commitments in the economic sphere, where such courts are situated in authoritarian settings. Then, it moves to the specific case of Rawabi, explaining the facts of the case and describing Rawabi's connections to the regime's interests. The paper concludes that the Constitutional Court has failed to perform its main function of upholding the Palestinian Basic Law and, in particular, protecting the right to property for the owners of the expropriated lands.]]>
<![CDATA[Social and Economic Rights in the German Basic Law? An Analysis with Respect to Jurisprudence of the Federal Constitutional Court ]]>
<![CDATA[Christoph Enders]]>
<![CDATA[ Constitutional Review Vol 6, No 2 (2020) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev621
<![CDATA[The Basic Law for the Federal Republic of Germany did originally not provide for social or economic rights understood as claims to benefits. The Federal Constitutional Court (FCC) did, indeed, recognise the states obligation to protect individuals against assault by others (right to security) and further ruled that everyone has the right to use facilities provided by the state under equal conditions (right to participation). These rights, however, aim to ensure that the state uses existing means as intended. In addition, the FCC by now has recognised a “right to the guarantee of a dignified minimum subsistence”. It is an original entitlement as the state is obliged to create and provide benefits for individuals in need. This new legal construction, however, misconceives the division of responsibilities between the FCC and the legislator and collides with the principle of the separation of powers]]>
<![CDATA[The Urgenda Case in the Netherlands on Climate Change and the Problems of Multilevel Constitutionalism ]]>
<![CDATA[Gerhard van der Schyff]]>
<![CDATA[ Constitutional Review Vol 6, No 2 (2020) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev622
<![CDATA[This contribution analyses the Urgenda judgments in the Netherlands which ordered the state to reduce the national emissions of greenhouse gasses by 25% by the end of 2020. In arriving at this conclusion, the courts relied heavily on international law, which was applied indirectly and directly to the case. The analysis shows various incongruencies and gaps in the judgments’ legal grounds and reasoning, and suggests that a focus on the Constitution is needed as well in addressing such important issues. This will require long overdue reform of the bar on constitutional review in order to stimulate a strong national legal culture based on the Constitution.]]>
<![CDATA[Constitutionalized But Not Constitute: The Case of Right to Social Security in Indonesia ]]>
<![CDATA[Stefanus Hendrianto]]>
<![CDATA[ Constitutional Review Vol 6, No 2 (2020) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev623
<![CDATA[Previous studies on the development of socio-economic rights in Indonesia heavily focus on the Constitutional Court’s decisions in upholding the rights. But there is still minimum study on the political economy behind the development of socio-economic rights in Indonesia. This article will analyze the development of socio-economic rights through the lenses of the right to social security. This article relies on two major theoretical frameworks to analyze the development of the right to social security in Indonesia. The first theoretical framework is the authoritarian constitutionalism in the economic sphere. The second theoretical framework in this article is Kathrine Young’s theory of the construction of socio-economic rights. This article postulates that the rights to social security has been constitutionalized but not constituted in Indonesia for several reasons. First, and foremost, the legacy of authoritarian constitutionalism that prioritizing economic growth over the fulfilment of social economic rights. The “growth” ideology has contributed to the discrepancy between the constitution and reality, in which the government merely considers protection of socio-economic rights as extra cost, which will hamper the growth of the economy. Second, the lack of philosophical and comparative analysis in the interpretation of rights to social security. Third, the transformation of the Court as a detached court in the enforcement of the rights to social security. The element of detachment is clearly seen in the Court’s too much deferral to the Executive and Legislative branches in defining the scope and meaning of the right to social security. Finally, the failure of social movement to create a new narrative on injustice and the importance of rights to social security.]]>
<![CDATA[The Role of Constitutional Courts in Promoting Healthcare Equity: Lessons from Hungary ]]>
<![CDATA[Mária Éva Földes]]>
<![CDATA[ Constitutional Review Vol 6, No 2 (2020) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev624
<![CDATA[This paper explores whether constitutional litigation contributes to sustaining the equity element of the right to health. Equity entails a fair distribution of the burden of healthcare financing across the different socio-economic groups of the population. A shift towards uncontrolled private healthcare provision and financing raises equity challenges by disproportionately benefitting those who are able to afford such services. The extent to which equity is enforced is an indicator of the strength of the right to health. However, do domestic constitutional courts second-guess, based on equity, policy decisions that impact on healthcare financing? Is it the task of constitutional courts to scrutinize such policy decisions? Under what conditions are courts more likely to do so? The paper addresses these questions by focusing on the case of Hungary, where the right to health has been present in the Fundamental Law adopted in 2010 and the Constitutions preceding it. While the Hungarian Constitutional Court has been traditionally cautious to review policy decisions pertaining to healthcare financing, the system has been struggling with equity issues and successive government coalitions have had limited success in tackling these. The paper discusses the role of constitutional litigation in addressing such equity concerns. In doing so, it contributes to the discussion on the role of domestic constitutional courts in the protection of social and economic rights.]]>
