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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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The Strong State And Pancasila: Reflecting Human Rights in the Indonesian Democracy Mutaqin, Zezen Zaenal
Constitutional Review Vol 2, No 2 (2016)
Publisher : The Constitutional Court of the Republic of Indonesia

The rights of every Indonesian citizens are protected by the 1945 Constitution. Does the reality matches with the normative regulations? Does democratization improves the protection of human rights especially in term of the religious freedom? We find that there is a discrepancy between the ideal written constitution and the reality. In this following essay I argue that the failure of Indonesian democratic regimes to protect human rights is the result of the lack of "stateness". The ideal of "stateness" is referring to Fukuyama idea that is "the ability of state to plan and execute policies and to enforce law". I will present the argument that the weakness of the administration cause by an ambiguity in the interpretation of the Indonesia ideology, Pancasila (the Five-Principles). This paper will firstly discuss the idea of strong state and its relation to the protection of human rights. Alongside the theoretical examination of the concept, I will discuss the weakness of democratic regimes in Indonesia to protect human rights. This will be followed by an examination of the core argument of the paper, argue that the principle cause of the state weakness lies on the ambiguity of the administration to interpret Pancasila.

Judicial Preview on the Bill on International Treaty Ratification Sidharta, Noor; Sudarsono, Sudarsono; Nurjaya, I Nyoman; Sugiri, Bambang
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 countryâs 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.

Relation between the Constitutional Court of the Republic of Indonesia and the Legislators according to the 1945 Constitution of the Republic of Indonesia Laksono, Fajar; Sudarsono, Sudarsono; Hidayat, Arief; Safaat, Muchammad Ali
Constitutional Review Vol 3, No 2 (2017)
Publisher : The Constitutional Court of the Republic of Indonesia

This research aims to analyze and to describe the relation between the Constitutional Court of the Republic of Indonesia (CC) with the People Representativesâ Council and the President of the Republic of Indonesia as legislators by looking on implementation of CCâs decision through the legislation in the period 2004-2015. Using doctrinal research, it can be seen how the constitutional mandate in the CCâs decision are implemented by the legislator through the legislation. The results are: (a) legal opinions of the CCâs decision have a binding power; (b) a constitutional mandate in the legal opinion is intended as guidance for the legislators regarding what the 1945 Constitution requires; (c) directives to the legislator in the legal opinions should be implemented because it is the implementation of the principle of checks and balances according to the 1945 Constitution, (d) implementation of the CCâs decisions through legislation does not have standard mechanism and does not become the priority of legislation, and (e) relation between the CC with the legislators can not be categorized in black and white in cooperative or confrontative, but shows ups and downs between cooperative and confrontative relations. Cooperative relations are realized when the constitutional mandate is formulated strongly so it is implemented by the legislator as the formula. Relationships tend to be cooperative in the implementation of the constitutional mandate of the decision, but not a priority of legislation. Meanwhile, the confrontative relations is seen from the constitutional mandate of the CC decisions which are not implemented.

The Function of Judicial Dissent in Indonesiaâs Constitutional Court Butt, Simon
Constitutional Review Vol 4, No 1 (2018)
Publisher : The Constitutional Court of the Republic of Indonesia

Indonesian judges are permitted to issue dissenting opinions. Constitutional Court judges regularly hand them down. However, neither judges nor academics have outlined the purposes of dissenting opinions in Indonesia. This article aims to promote discussion about what these purposes are, or should be, in Indonesia, with a view to increasing the utility of dissents. It begins by considering the international scholarly literature details some purposes recognised in other countries, such as increased transparency and accountability, but also some disadvantages, such as the perceived weakness of a divided court. It then considers how the Constitutional employs dissents, before exploring some of the uncertainties and unanswered questions about dissents and their use in Indonesia.

Filling the Hole in Indonesiaâs Constitutional System: Constitutional Courts and the Review of Regulations in a Split Jurisdiction Lindsey, Tim
Constitutional Review Vol 4, No 1 (2018)
Publisher : The Constitutional Court of the Republic of Indonesia

The Indonesian constitutional system contains a serious flaw that means that the constitutionality of a large number of laws cannot be determined by any court. Although the jurisdiction for the judicial review of laws is split between the Constitutional Court and the Supreme Court, neither can review the constitutionality of subordinate regulations. This is problematic because in Indonesia the real substance of statutes is often found in implementing regulations, of which there are very many. This paper argues that that is open to the Constitutional Court to reconsider its position on review of regulations in order to remedy this problem. It could do so by interpreting its power of judicial review of statutes to extend to laws below the level of statutes. The paper begins with a brief account of how Indonesia came to have a system of judicial constitutional review that is restricted to statutes. It then examines the experience of South Koreaâs Constitutional Court, a court in an Asian civil law country with a split jurisdiction for judicial review of laws like Indonesiaâs. Despite controversy, this court has been able to interpret its powers to constitutionally invalidate statutes in such a way as to extend them to subordinate regulations as well. This paper argues that Indonesiaâs Constitutional Court should follow South Koreaâs example, in order to prevent the possibility of constitutionalism being subverted by unconstitutional subordinate regulations.

Proportionality Test in the 1945 Constitution: Limiting Hizbut Tahrir Freedom of Assembly Taufik, Giri Ahmad
Constitutional Review Vol 4, No 1 (2018)
Publisher : The Constitutional Court of the Republic of Indonesia

In May 2017, Jokowiâs administration announced the intention to dissolve Hizbut Tahrir Indonesia (HTI). HTI is an Islamic organization that aspires to establish caliphate government based on the claim of Islamic teaching. The Government considers HTI as a threat to Pancasila. The announcement has created controversy. It has divided Indonesian into pro and contra camp. The dissolution pro camp argues HTI ideology is against Pancasila, Indonesia political ideology. Furthermore, they pointed out HTIâs idea of Caliphate that based on religion would disintegrate the nation. Conversely, the cons argues the government move is against the constitutionally guarantee freedom of association as stipulates in the 1945 Constitution of the Republic of Indonesia (hereafter the 1945 Constitution). The move would create precedent that threatens freedom of assembly if the government failed to enact due process procedure and provide justifiable reason for the action. This controversy is not new to human rights and democratic discourse. Karl Popper describes the debate as a paradox of tolerance, democracy, and freedom in an open society. This paper examines how the 1945 Constitution can be utilized to resolve the paradox. This paper argues that Article 28 J par.2 of the 1945 Constitution requires the balance between human rights protection and limitation in its proportion. Thus, the limitation clause should be used as a parameter to solve HTI issue. This paper explores the use of proportionality test in interpreting the limitation clause and applies it not only to the question of HTI issue but also broader issues to evaluate recent government moves in amending the Law Number 17 Year 2013 on Societal Organisation. This paper employs a doctrinal method in its analysis.

Mainstreaming Human Rights in the Asian Judiciary Hanara, Desi
Constitutional Review Vol 4, No 1 (2018)
Publisher : The Constitutional Court of the Republic of Indonesia

Human rights protection in Asia is hindered by the absence of binding human rights instruments and enforcement mechanisms, including the lack of human rights mainstreaming into the works of relevant stakeholders, notably the judiciary. Judiciary plays key roles in the realization and protection of human rights. As the guardian of the Constitution, the Indonesian Constitutional Court (âthe Courtâ) is mandated to protect the human rights of the citizens. This paper argues that the Court, which previously served as the President of the Association of Asian Constitutional Courts and Equivalent Institutions (AACC), has the potential to play a leading role in mainstreaming human rights in the region. Using normative and comparative legal research methodologies, the paper identified the Courtâs mandates on human rights at the national, regional and international levels; assessed the need for human rights mainstreaming in the Asian judiciary; and examined the significant potential of the AACC to house the mainstreaming project. Finally, it proposes several recommendations for the Courtâs consideration, namely to encourage judicial independence, recommend human rights incorporation into judicial discussions and decisions, suggest the establishment of a platform to enhance human rights expertise of the judiciary, as well as facilitate a platform for the development of binding human rights instruments and the establishment of an Asian Human Rights Court.

Revisiting Liberal Democracy and Asian Values in Contemporary Indonesia Ulum, Muhammad Bahrul; Hamida, Nilna Aliyan
Constitutional Review Vol 4, No 1 (2018)
Publisher : The Constitutional Court of the Republic of Indonesia

This paper aims to examine the complex and often contentious relationship between constitutionalism and integralism in the Indonesian government and provides a criticism of democratization within the contemporary state. Integralist state portrays the relationship between the state and the people as analogous to a family, with the state as a father and the people as children (the Family Principle). Those that adhere to this view, with regard to contemporary Asian politics, claim that Asian values are inherently integralist, that Asiaâs particular history and values different considerably from the Westâs, and that Pancasila, Indonesiaâs state philosophy, is utilized to establish romanticized relations between the ruler and the ruled. The data presented in this paper was collected from relevant articles on Indonesian democracy and Asian values. It also demonstrates how Pancasila, as Indonesiaâs core guiding philosophy, has influenced debates over how the constitutional should be applied and interpreted. As the research shows, during the regimes of Sukarno and Suharto, Pancasila was manipulated in order to promote the goals of the state, and that a reliance on integralism during Indonesiaâs founding years severely diminished human rights and Indonesiaâs capacity for an efficient democracy. By continually putting the priorities of the state above those of the people, the Indonesian government has contradicted its adoption of human rights and liberal democracy is often challenged by the spirit of integralism.

Laws of Ratification of an International Treaty in Indonesian Laws Hierarchy Sidharta, Noor
Constitutional Review Vol 3, No 2 (2017)
Publisher : The Constitutional Court of the Republic of Indonesia

This journal article discusses the laws of ratification of an international treaty in Indonesian laws hierarchy. This journal uses a normative research approach where a draft agreement and laws are used as primary data apart from the laws and international treaties. There are some issues that still unsettled related to the legal status of the laws of ratification of an international treaty that have impacts in the implementation of the treaty. The laws of ratification of an international treaty now is still classified as general laws whose the content of the norm has been discussed by the Peopleâs Representatives Council, therefore the laws of ratification of an international treaty automatically become the object of Judicial Review at the Constitutional Court of the Republic of Indonesia. The cancellation of the laws of ratification of an international treaty impacts the cancellation of the deal on the treaty and it has failed the pacta sunt servanda principle, which becomes the basis of a treaty. To solve problems related to the cancellation of laws of ratification of an international treaty at the Constitutional Court, there are several efforts on state administration by classifying the laws which differ the general laws from the laws whose contents are related to the international treaty. Furthermore, a progressive new method on the state administration is needed by giving a Judicial Preview right to the Constitutional Court to conduct a review on the bill of the ratification of an international treaty based on its suitability to the constitution.

The Indonesian Constitutional Court and the Democratic Institutions in Judicial Review Omara, Andy
Constitutional Review Vol 3, No 2 (2017)
Publisher : The Constitutional Court of the Republic of Indonesia

This paper focuses on the relationship between the Indonesian Constitutional Court, the legislature, and the executive in judicial review. It aims to explain the Court strategies in deciding judicial review cases related to the right to work in relation with the executive and the legislature. It appears that while constitutionally the Court is granted with a strong form of judicial review (as reflected in the finality of its decisions), it also employed other approaches in deciding cases related to the right to work. These approaches include the declaration of incompatibility, conditional decision, and the invalidation of a statute in its entirety. This paper argues that Katharine G. Youngâs typology of judicial review is quite helpful as an interpretive tool to understand the Court approaches when it decided cases related the right to work. The use of various approaches by the Court affected the relationship between the Court, the executive, and the legislature. This is because the executive and the legislature are the implementing agencies of the Court rulings.

Page 3 of 17 | Total Record : 164

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Pan Mohamad Faiz

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Pan Mohamad Faiz

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Kota adm. jakarta pusat,

Dki jakarta

INDONESIA