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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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Human Rights Constitutionalism in Indonesia’s Foreign Policy P. Wiratraman, Herlambang
Constitutional Review Vol 1, No 1 (2015)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31078/consrev116

Abstract

This article examines conceptual discourse of human rights constitutionalism as fundamental part of making policies in international relations. There are two key questions, first, to what extent human rights constitutionalism has been brought into discourse of its foreign policies, and second, how such human rights constitutionalism has been shaped by various actors, state and non state’s relations. The politics of image’ has been developed from regime to regime. However, such politics does not reflect substantially in progressing of human rights development. As part of democratic governance, and in the context of a more globalized society, Indonesia should rethink of its foreign policy foundations, especially in terms of transnational issues such as human rights, environment, and poverty. Therefore, central discussion in this regards is how to strengthen human rights constitutionalism is not merely internal and/or domestic affairs, but also this should build stronger and brave policies to develop and prioritize humanity values throughout international relations.
Identification And Analysis Of The Rights Of Indigenous Peoples In The Study Of Constitutional Law Yusa, I Gede
Constitutional Review Vol 2, No 1 (2016)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (333.982 KB) | DOI: 10.31078/consrev211

Abstract

The Resolution of the UN General Assembly in 2000 has mandated to discuss indigenous issues related to economic and social development, culture, environment, education, health and human rights. In national law, the recognition of the existence of traditional people with customary rights can be found in Article 18 B paragraph (2) and Article 28  paragraph  (3) of  the Constitution of the Republic of Indonesia of 1945. This study discusses the rights that grow and thrive in indigenous communities in Bali which are associated with the life of society and state. Also the responsiveness or recognition of Indonesia to the presence of the state constitution means the rights of indigenous peoples has grown and developed  in Bali and empowerment efforts  need to be done for   the rights of indigenous peoples has grown and developed in Bali to be able to be a force in the life of society and state. Studies on the identification of the rights of the traditional lifestyle that are recognized in the community as well  as prospective empowered in the state of life in Indonesia can be classified as a normative legal research conducted on the relevant legal materials. Legal materials and supporting information that has been gathered up with regard to research on the identification and analysis of the rights of traditional communities in Indonesian Studies State Laws (A Study of Traditional Balinese Community) Firstly the description  and  interpretation  was  carried  out,  or  interpretation of the normative propositions found to be further systematized in accordance with discussion on the subject matter of this study. The results of this analysis are three techniques to evaluate and analyze its content according to the given arguments and conclusions of law to get a top issue in this study. States have  an obligation to give recognition to indigenous peoples based on the constitution. Responsiveness or the constitutional recognition of the existence of  the rights  of indigenous peoples has grown and developed in Bali are envisaged in the constitution, namely Article 18B  paragraph  (2) and  Article 28  paragraph  (3)  of the Constitution of the Republic of Indonesia of 1945. The constitutional mandate must be obeyed by state officials to regulate the recognition and respect for indigenous peoples in some form of legislation. While the empowerment of local people has been recognized by constitution, yet much remain to be done. The rights of indigenous peoples which has grown and developed in Bali should be legally enforced in the life of society and state.
The Decentralization Of Political Parties Through The Institutionalization Of The Local Political Parties Karsayuda, Muhammad Rifqinizamy
Constitutional Review Vol 2, No 1 (2016)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (317.483 KB) | DOI: 10.31078/consrev214

Abstract

The implementation of regional autonomy through Acts Number 23/2014 on Regional Government formulates the authority that can be maintained by local governments. One of the authorities’ is the political autonomy. The efforts to implement the political autonomy can be done through the institutionalization of local political parties. However, according to Indonesian Law, the institutionalization of  local political parties is not regulated  in the provisions  of acts related to political parties. The legislation that regulates local political parties can be found only in Acts Number 11/2006 on Aceh Government and Acts Number 21/2001 on Special Autonomy for Papua Province. Therefore, this paper analyzes the theoretical, juridical and sociological reasons underpinned the idea of local political parties’ institutionalization. This research is a normative legal research which uses legal matter and acts to analyse the problems. This research finds strategies that is relevant to make local political parties institutionalized. There are five reasons to deliver local political parties in Indonesia based from this research. First, the theoretical foundation describes Indonesia as a country with federalism autonomy.  Second,  the constitutional  juridical  basis consists  of two principles of the Constitution, namely the principle of the autonomy of the unitary state and the principle of equality and freedom of every citizen in governing. Third, The platform of sociological based on the fact that the choice of pluralistic Indonesian society is still diverse in many elections. Fourth, the historical background in the form of historical experience that in 1955 General Election and Local Election, there  were  several  local  political  parties.  Fifth, the comparative study  in  United  Kingdom as a unitary state and  Malaysia as a Federal State, which both have local political parties. The concept of local political parties that are relevant to be applied in Indonesia in the constitutional juridical perspective related to the decentralization of political parties can be built through four strategies. First, the local political party whose presence was based on pluralist paradigm which provides the idea that in a pluralistic society should be built a decentralized party system in order to sustain the plurality of society. Second, the local political party which drafted is a separate legal entity which is dichotomous from the national political parties as a legal entity. Third, local political party’s participation in elections only to the General Election and Local Elections for Legislative Elections candidates, the Provincial Representatives, Regency / City. Fourth, the formation mechanism, supervision and dissolution  of local political parties are designed similar to national political process for parties as applicable today.
A Prospect and Challenges for Adopting Constitutional Complaint and Constitutional Question in the Indonesian Constitutional Court Faiz, Pan Mohamad
Constitutional Review Vol 2, No 1 (2016)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (352.063 KB) | DOI: 10.31078/consrev215

Abstract

A jurisdiction of the Indonesian Constitutional Court concerning constitutional adjudication is only limited to review the constitutionality of national law. There is no mechanism for challenging any decision or action made by public authorities that violate fundamental rights enshrined in the Indonesian Constitution. This article argues that constitutional complaint and constitutional question might be adopted as new jurisdictions of the Indonesian Constitutional Court in order to strengthen the protection of fundamental rights of its citizen. It also identifies main problems that will be faced by the Constitutional Court in exercising constitutional complaint and constitutional question. For instance, the Court will be burdened with too many cases as experienced by other countries.  A clear mechanism for filtering applications lodged to the Constitutional Court and the time limit for deciding cases are important elements that have to be regulated to overcome the problems. In addition, the institutional structure of the Constitutional Court has to be improved, particularly to support its decision- making process.
The Common Access as Pro People Management of Natural Resources (An Analysis of Decision Number 3/PUU-VIII/2010 about Judicial Review of Law 27/2007) Tobroni, Faiq; Kamala, Izzatin
Constitutional Review Vol 2, No 1 (2016)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (320.217 KB) | DOI: 10.31078/consrev216

Abstract

This paper aims to explore the new concept as an alternative management of natural resources (specifically Coastal Areas and Small Islands/CA-SI). In Decision Number 3/PUU-VIII/2010 (the Court Decision), the Constitutional Court uses the new concept as considerations to cancel the Concession Rights on Coastal Waters (CR-CW) as the mechanism of management of CA-SI in Law Number 27 Year 2007 about Management of Coastal Area and Small Islands (Law 27/2007). Some important questions in this paper are why did the Constitutional Court annul CR-CW in Law 27/2007? Whether the new concept offered in the Court Decision and consistent with 1945 Constitution? And how is the new concept offered consistent with people empowerment?The revoke of CR-CW in Law 27/2007 is caused that the concept of concession is contrary to the norms of natural resources management in the 1945 Constitution and the spirit of people empowerment. The new concept offered in the Decision is the common access. In this concept of access, CA-SI is   regarded as the common property with the rules from members of the community itself. The provisions to access CA-SI  as  the common  property are also determined by agreements of the community itself. Management of CA-SI on the common access is in accordance with people empowerment. The consistency is shown by the relevancy of concept of common access to include three key issues of people empowerment (access, assets and collective  capabilities).
The Constitutionalization of Budget for Education and Its Judicial Enforcement in Indonesia Omara, Andy
Constitutional Review Vol 2, No 2 (2016)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (295.569 KB) | DOI: 10.31078/consrev222

Abstract

The introduction of provision concerning budget allocation for education in the amended constitution is not a common method in constitutional drafting in Indonesia. This article aims to understanding the background of the inclusion of this provision and its judicial enforcement. It argues that the establishment of this provision closely related to the fact that education was not properly funded. As a result, the quality of education was negatively affected. The constitutionalisation of budget for education opens the possibility to allocate the national budget in this field in a more sustainable way. In addition, by constitutionalizing budget for education, there is a legal avenue available to challenge the government policy if the government fails to fulfill its constitutional obligation. The newly established Constitutional Court has the power to review whether the allocation of national budget for education is consistent with the Constitution. In some judicial review cases on budget for education, the Court took legal approach and also extralegal factors in its rulings.
Election Design Following Constitutional Court Decision Number 14/PUU-XI/2013 Laksono, Fajar; Agustine, Oly Viana
Constitutional Review Vol 2, No 2 (2016)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (322.512 KB) | DOI: 10.31078/consrev223

Abstract

The major implication from Constitutional Court Decision No. 14/PUU-XI/2013 is that the Constitution promotes fundamental changes to the design of the general election regarding both process and substance. Therefore, in order to uphold the Constitution, efforts are required to reconstruct the design of the general election, particularly so that elections are conducted in accordance with Decision No. 14/PUU-XI/2013 as a representation of the spirit and the will of the 1945 Constitution. Essentially, the current norm regarding the implementation of general elections following the election of members of the representative institution is not consistent with the stipulations in Article 22E Paragraph (1) and Paragraph (2) and Article 1 Paragraph (2) of the 1945 Constitution. Constitutional Court Decision No. 14/PUU-XI/2013 aims to realign the implementation of the elections with the intentions of the 1945 Constitution. Through implementation of the original intent method and systematic interpretation, the Constitutional Court offered its interpretation that the framers of the amended Constitution intended that general elections have five ballot boxes, with the first for the People’s Representative Council (Dewan Perwakilan Rakyat, DPR), the second for the Regional Representative Council (Dewan Perwakilan Daerah, DPD), the third for the president and vice president, the fourth for the Regional People’s Representative Council (Dewan Perwakilan Rakyat Daerah, DPRD) at the provincial level and the fifth for the DPRD at the regency level. Thus, it can be concluded that the presidential elections should be conducted simultaneously with elections of members of the representative bodies. Through this decision, the Constitutional Court revoked the prevailing norm, such that Presidential Elections and Elections of members of representative bodies were no longer valid because they violated the 1945 Constitution. The Constitutional Court introduced a new legal condition that obligated General Elections to be held simultaneously.
Dynamics of the Obligation to Register Birth Certificates as a part of the Right to Issuance Population Documents Wijayanti, Winda
Constitutional Review Vol 2, No 2 (2016)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (286.65 KB) | DOI: 10.31078/consrev224

Abstract

The state is obliged to protect and recognise the legality of a person’s birth. Registration of birth in the form of a birth certificate is proof of one’s origin issued by the competent authorities. However, in practice, the time limit of one year given for such registration has proven a burden to citizens, such that complaint of constitutional damages has been brought before the Constitutional Court of Indonesia. Population administration is regulated under Act Number 23, Number 23 Year 2006 and amended by Act Number 24, Number 24 Year 2013 in accordance with Constitutional Court Decision 18/PUU-XI/2013. In order to take an active role in the registration of births, the government and local governments have to remove the deadline to report the birth of a child, as stipulated by the district court and as an effort to improve state responsibility. This requires that citizens have the "right to be heard" and, in future, there should be an integrated service from the government for the registration of births.
The Unamendable Articles of the 1945 Constitution Eddyono, Luthfi Widagdo
Constitutional Review Vol 2, No 2 (2016)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (267.319 KB) | DOI: 10.31078/consrev225

Abstract

The amendments of the 1945 Indonesian Constitution between 1999 and 2002 have significantly changed the state system in Indonesia. In such a short period, the Constitution has been amended four times, provokes enormous additional norms and causes the establishment of several new institutions, including the Constitutional Court and Judicial Commission. However, after the amendments to the 1945 Indonesian Constitution on Chapter XVI about Amendments to the Constitution, the framers of the amended Constitution created Article 37 paragraph (5) that stated, the form of the unitary state of the Republic of Indonesia may not be amended. The Preamble is also implicit unamendable. My purpose in this article is to understand the original intent of Article 37 paragraph (5) of the 1945 Indonesian Constitution, the real function of the article and also to describes original intent arguments explaining why the Preamble of the Constitution also unamendable. Before the amendments between 1999 and 2002, there is no article and provision like that, especially in the original 1945 Constitution. At last, I found that two important points that explain why this new provision created. First, the framers still afraid of separatism based on experience in 1950’s when federalism occurred in Indonesia. Second, the procedure to amend the articles of the 1945 Constitution shows that the framers only wants to strengthen the important system of unitary state because there is no differences process to amend articles of the 1945 Constitution.
Architecture of Indonesias Checks and Balances Chandranegara, Ibnu Sina
Constitutional Review Vol 2, No 2 (2016)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (303.255 KB) | DOI: 10.31078/consrev226

Abstract

Research on "checks and balances" in legal studies often raises high quality questions such as, is the checks and balances a doctrine, principle, or legal theory, or maybe precisely the formula of power in politics. History has been recorded that in any discussions regarding the formation of the constitutional separation, division and smelting power is something that is popular to be discussed before and even after becoming the constitution. Therefore, the casting of checks and balances into the constitution is an interesting study to determine the portion and posture. This study used using legal normative methodology. In addition, comparative studies on constitution was conducted using classic and modern constitutional law literature. Several approaches were used on this research such as, historical, political, economical approach on understanding the practice on checks and balance which stated in constitutions in some countries.

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