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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.
Arjuna Subject : -
Articles 164 Documents
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Enforcing Nonjusticiable Rights In Indonesia Andy Omara
Constitutional Review Vol 6, No 2 (2020)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev625

Abstract

A debate over which branch of government is the most appropriate institution to deal with economic and social rights is far from ended. Is it the legislature which is democratically elected or the unelected Court that should determine the enforcement of economic and social rights? Problems pertaining to the lack of legitimacy and competence often come up when the Court is involved in determining economic and social rights. These problems arise because a court is not democratically elected and is not equipped with necessary tools to deal with such a complex issue in economic and social rights. However, others believe that the Court’s involvement in determining economic and social rights can strengthen democracy since the Court may enforce matter that is not sufficiently addressed by the lawmaker. This paper will address the above issue in context of Indonesia. Should the Court involve in protecting economic and social rights? If so, how far the Court can go to determine economic and social rights? This paper acknowledges that economic and social rights are a broad and complex topic. Therefore, this paper limits the discussion by analyzing four selected judicial rulings which have significant impact in the protection of economic and social rights in Indonesia i.e. the judicial review cases on Electricity Law, Water Resources Law, National Education System Law and National Budget Law. This paper argues that it is necessary for the Court to involve in determining economic and social rights, especially when the lawmaker does not sufficiently address issues related to economic and social rights in its legislative product. The Court may fill the gaps in the protection of Economic and Social rights. The Court roles in this context, however, potentially encroach the authority of other branches of governments i.e. the executive and the legislative. Therefore, the Court roles should be carefully and strategically conducted so that it does not infringe the jurisdiction of the government and the lawmakers.
The Relationship Between the European Convention on Human Rights and Domestic Law: a Case Study Kamil A. Strzępek
Constitutional Review Vol 6, No 2 (2020)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev626

Abstract

The article is pertaining to the relationship between the European Convention on Human Rights and the Polish national law. Upon the introduction of the system of economic, social and cultural rights contained in the Constitution of the Republic of Poland of 1997, the article considers what rules determine the relationship between the application of the law by Polish courts and the European Court of Human Rights in Strasbourg. The paper concludes by showing how Polish courts and the European Court of Human Rights in Strasbourg refer to the right of property. It’s one of the fundamental human rights, when they examine a case. It occurs that clauses, which limit this right, are sometimes understood in a different way by Polish courts and the European Court of Human Rights. Regarding the above, the case of Waldemar Nowakowski v. Poland of the European Court of Human Rights in Strasbourg is discussed. Furthermore, the article presents how the Polish Government executes the judgment of the European Court of Human Rights in Strasbourg delivered in the above-mentioned case.
Beyond Resolution 2347 (2017): The Search for Protection of Cultural Heritage from Armed Non-State Groups Giulia Baj
Constitutional Review Vol 7, No 1 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev716

Abstract

One expression of cultural rights is the right to enjoy cultural heritage. However, the latter is not efficiently protected in situations of armed conflict. In many cases, armed non-State groups (ANSGs) have destroyed or looted cultural heritage items. The United Nations Security Council has intervened with Resolution 2347 (2017), welcomed by many as a milestone in the international protection of cultural heritage in conflict situations. However, this Resolution presents several limitations. The protection of cultural heritage from destruction and exploitation does not appear as the main focus, but rather as a means to fight terrorist groups. The attacks against cultural heritage are considered “war crimes”, but only “under certain circumstances”. The Resolution encourages States “that have not yet done so to consider ratifying” treaties on the issue in question; however, these instruments are treaties drafted and ratified by States. Problems of compliance by non-State actors, as ANSGs, arise. Hence, the capacity of theResolution to effectively protect cultural heritage in conflicts involving ANSGs is debated. This paper analyses the text of Resolution 2347 (2017), resorting to traditional means of interpretation to highlight its limitations, and considers how a general sense of the necessity to protect cultural heritage from attacks committed by ANSGs has emerged, as demonstrated by the International Criminal Court's Al Mahdi case. The paper then considers other ways to guarantee the protection of cultural heritage from ANSGs. A proposal for stronger protection of cultural heritage by States through both international humanitarian law (IHL) and international human rights law (IHRL) is presented. In particular, the connection between the protection of cultural heritage, the guarantee of cultural rights and other human rights is presented, resorting to instruments of doctrine and analyzing instruments of practice. Finally, the case for the stronger international cooperation for the protection of cultural heritage is made; problems of compliance by ANSGs may persist, but the systematic destruction of cultural heritage items can be considered a violation of cultural rights, thus requiring the cooperation of all international stakeholders.
The Challenges for Court Reform after Authoritarian Rule: The Role of Specialized Courts in Indonesia Melissa Crouch
Constitutional Review Vol 7, No 1 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev711

Abstract

Political transitions from authoritarian rule may lead to a process of court reform. Indeed, court reform has been a central pillar of the law and development movement since the 1960s. What challenges do court reform efforts face after authoritarian rule in Indonesia and to what extent can specialized courts address these challenges? In this article, I examine court reform and the establishment of specialized courts in Indonesia post-1998. I argue that we need to pay attention to the politics of court reform after authoritarian rule. Specialized courts as a type of institutional reform need to be considered together with judicial culture in order to address fundamental challenges in the courts.
The Implementation of Economic, Social and Cultural Rights in Canada: Between Utopia and Reality Miriam Cohen; Martin-Olivier Dagenais
Constitutional Review Vol 7, No 1 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev712

Abstract

Canada has been at the forefront of the recognition of human rights, including economic, social and cultural rights (ESC rights) in the international scene. As a party to the International Covenant on Economic, Social and Cultural Rights,1 Canada has, over the years, implemented in legislation and case-law some ESC rights such as the right to health, education and social welfare.While ESC rights were not explicitly identified in the Charter of Rights and Freedoms,2 which forms part of the Canadian Constitution, ESC rights in different forms have received some protection in the Canadian legal order. An analysis of the Canadian record with respect to ESC rights demonstrates the immense gap between a glorified image of Canada as an international human rights proponent (the ‘utopia’) and the actual implementation of internationally recognized human rights in Canada (the ‘reality’). As Canada is bound to face major transformational changes to its economy and social fabric in the years to come, the Courts will have to adapt quickly and efficiently to ensure a smooth transition. This paper overviews the evolution of the case-law on ESC rights in Canada in light of its international obligations, and suggests, the relevant ESC rights jurisprudence signals a disconnect with Canada’s international obligation ‘requiring progressive implementation to the maximum of available resources by all appropriate means.’
The Indonesian Constitution Read with German Eyes Herbert Küpper
Constitutional Review Vol 7, No 1 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev713

Abstract

The Indonesian Constitution offers many interesting insights to a German constitutional scholar. The most striking feature is the balance between the unitarian state and the natural diversity of Indonesia. In Germany, the state architecture reflects regional diversity in its federal framework, whereas Indonesia combines the unitarian state with various decentralising elements. This balance between unitarianism and regional diversity is probably the most conspicuous feature of the Indonesian Constitution and appears to be a suitable compromise between the conflicting aims of stabilising the state and the nation on the one hand and accommodating the geographic, demographic and cultural differences within the country on the other. Another striking feature is the presidential system, which is quite the opposite of the parliamentary system of the German Constitution. Other points that, from the perspective of German constitutional law, invite comparison are the constitutional provisions about the legal system,Indonesia’s constitutional monotheism, which is quite the opposite of the German idea of the state being strictly neutral in religious affairs, and human rights.
Economic, Social and Cultural Rights During Crisis in Cyprus: The Interplay Between Domestic and External Normative Systems Constantinos Kombos; Athena Herodotou
Constitutional Review Vol 7, No 1 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev714

Abstract

Economic, Social and Cultural (ESC) rights have been present and active in the Cypriot legal order from the moment of its constitutional genesis. Due to the special relationship between the Constitution and the European Convention on Human Rights (ECHR), the judiciary has adopted a unique approach when interpreting the Constitution; it has been willing to engage into a comparative juridical analysis and to rely on the ECHR and the findings of the European Convention on Human Rights (ECtHR). Through this nexus with the ECHR and the streamlined approach with the ECtHR, the legal system of Cyprus has been progressive in placing social and economic rights – and to a lesser extent cultural rights – in a secure position. This traditional approach of the Cypriot courts was called into question by the 2011-2016 economic crisis, which challenged the interplay between domestic and external normative systems. The aim of this paper is to assess the impact of the recent economic crisis on the protection of ESC rights and the change in the balance between domestic and normative systems. The analysis concludes that the protection of ESC rights under the Cypriot Constitution, as formed by Cypriot case law, has been substantive and effective, while positively influenced by the extensive deployment of the comparative method. That long-standing approach has been challenged by the economic crisis and it seems that the extrovert judicial viewpoint is now partly reconsidered. The Supreme Court has indicated, albeit in specific instances, its willingness to disregard guidance from external influences and to focus instead on the idea that national constitutional protection can and should exceed that of the ECHR.
Defender of Democracy: The Role of Indonesian Constitutional Court in Preventing Rapid Democratic Backsliding Adfin Rochmad Baidhowah
Constitutional Review Vol 7, No 1 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev715

Abstract

Debate on the quality and durability of Indonesia’s democracy has intensified in recent years. Political scholars had generally praised the country’s democratic achievements and stability in the two decades following the 1998 resignation of long-serving president Suharto. But more recently, a growing number of academics have noted that elements of Indonesia’s democracy are being eroded. While the issue of Indonesia’s democratic backsliding has gained considerable attention and generated much academic literature, few scholars have analyzed why Indonesia has not entered a phase of rapid backsliding or a return to authoritarianism. This article argues the role of the Indonesian Constitutional Court in the consolidation of democracy has been frequently overlooked. By using a qualitative approach involving archival research of the Constitutional Court’s sessions on disputed results in Indonesia’s 2019 elections, this article finds the Constitutional Court has been able to prevent rapid democratic backsliding and even a reversion to authoritarianism, by ensuring competitiveness, participation and accountability in elections.
Social Rights and the Turkish Constitutional Court Engin Yıldırım
Constitutional Review Vol 7, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev721

Abstract

Through a brief examination of the Turkish experience, this article endeavors to illuminate the debate on the role of constitutional courts in interpreting social rights. The Turkish Constitutional Court has in many cases rejected applications for the annulment of legislation related to social rights, on the grounds that it is within the legislature’s discretion to determine public policy priorities based on economic resources and economic stability. This article suggests the Turkish Constitutional Court has narrowly interpreted constitutionally recognized social rights within the boundaries of the Turkish Constitution, with the notable exception of labor rights in individual applications.
The Religiosity of the Indonesian Constitution: Article 29(1) and Its Interpretation Ahmad Rofii
Constitutional Review Vol 7, No 2 (2021)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev722

Abstract

This paper examines the problem of whether the inclusion of religious words in the Indonesian Constitution is tantamount to the establishment of a religious constitution. By focusing on the Constitution’s provision on “belief in the One and Only God” in Article 29(1), this paper challenges the received theory of the religiosity of the Constitution. To that end, the paper first investigates the doctrinal and historical implications of Article 29(1). Particular analysis concerns the implications of this constitutionalization for Islamic law. The Constitutional Court’s decision on interreligious marriage is critically examined as an example of how the received theory is endorsed and articulated in the case of marriage. This paper argues that Article 29(1) concerns all religions, without any implied exclusion of non-monotheistic religions. Moreover, this paper affirms what is called the Pancasila state, located between an exclusively secular state and a religious or theocratic state. This arguably makes the notion of the religiosity of the Constitution unjustified. The Constitutional Court, however, has interpreted Article 29(1) in a strongly religious sense, leading to religious supremacy and, accordingly, is contrary to how the Constitution ought to be understood.

Page 14 of 17 | Total Record : 164

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