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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 Commentary: the Inadmissibility of Non-Indonesian Citizens in Judicial Review before the Indonesian Constitutional Court Mahendra, Bayu
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/PUUâV/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 applicantsâ constitutional loss which should actually serve as the substantial examination in judicial review but rather addressed this question on the basis of applicantâs citizenship. This inadmissibility ruling, however, raises question on what legal standing actually mean in the context of judicial review. This paper reviews the Courtâs 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, Courtâs 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 Courtâs 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.

An Analysis of Subjectum Litis and Objectum Litis on Dispute about the Authority of State Institution from the Verdicts of the Constitutional Court Triningsih, Anna; Mardiya, Nuzul QurÃ¢Â€Â™aini
Constitutional Review Vol 3, No 2 (2017)
Publisher : The Constitutional Court of the Republic of Indonesia

The relationship of mutual control and balance between state institutions gives an opportunity for the emergence of the dispute about the authority of state institutions, especially the dispute about the constitutional authority. In relation to a dispute about authority of state institutions given by the 1945 constitution, a judicial institution is used to resolve the dispute. That judicial institution is the Constitutional Court. The court can evaluate the subjectum litis and objectum litis from the dispute about the authority of state institutions. Therefore that matter will be resolved definitively by the verdict of the Constitutional Court where the verdict is permanent and binding, then later it will become a jurisprudence, and it will be used as a reference. There are eight verdicts of the Constitutional Court related to disputes about the authority of state institutions which are related to the subjectum litis and objectum litis, such as: The verdict of The Consitutional Court No.004/SKLN-IV/2006; the verdict of the Consitutional Court No.030/SKLN-IV/2006; the verdict of the Consitutional Court No. 26/SKLN-V/2007; the verdict of the Consitutional Court No. 27/SKLN-VI/2008; the verdict of the Consitutional Court No. 1/SKLN-VIII/2010; the verdict of the Consitutional Court No. 2/SKLN-IX/2011; the verdict of the Consitutional Court No. 5/SKLN-IX/2011; and the verdict of the Consitutional Court No. 2/SKLN-X/2012.

The Criticism on the Meaning of âOpen Legal Policyâ in Verdicts of Judicial Review at the Constitutional Court Mardian Wibowo Wibowo, Mardian; Nurjaya, I Nyoman; Safaat, Muchammad Ali
Constitutional Review Vol 3, No 2 (2017)
Publisher : The Constitutional Court of the Republic of Indonesia

In several verdicts of judicial review, the Constitutional Court formulates a concept of Open Legal Policy. The concept begins from a condition when a norm of law submitted to judicial review by the 1945 Constitution does not have reference in the 1945 Constitution. In other words, the open legal policy is a condition when the Constitutional Court cannot find any reference for the norm submitted to the judicial review. By using a construction method, this present research tries to find the meaning of a concept of open legal policy arranged by the Constitutional Court, then assessing whether the concept is in line with the spirit of judicial review. If the formulation of the concept done by the Constitutional Court has not been ideal, the deconstruction will be conducted toward the meaning that already exists until the open legal policy ideal with the perspective of the constitution is found. In this research, the finding shows different meaning of open legal policy between various verdicts of the Constitutional Court. Moreover, a new meaning is proposed including improvement of criteria of the open legal policy based on the difference between the object of regulation (what) and the content of the regulation (how).

Constitutional Complaint and the Protection of Citizens the Constitutional Rights Palguna, I Dewa Gede
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 courtâs 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; Bakri, Moch; RubaÃ¢Â€Â™i, Masruchin; Djatmika, Prija
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 Indonesiaâs 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 âReconstruction of Ethics Supervision System toward Constitutional Justiceâ, 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.

Independence of the Indonesian Constitutional Court in Norms and Practices Eddyono, Luthfi Widagdo
Constitutional Review Vol 3, No 1 (2017)
Publisher : The Constitutional Court of the Republic of Indonesia

Article 24 (1) of the 1945 Constitution States after the third amendment, âthe judicial power shall be independent in administering justice so as to uphold the law and equality.â The Indonesian Constitutional Court is one of the performers of the independent judicial power who plays a significant role in the enforcement of the constitution and the principle of the state based on the law by its authority and obligations as determined by the 1945 Constitution. This paper intends to study the Indonesian Constitutional Court to find out whether the Constitutional Court in exercising its constitutional authority can be independent. Also, this article will examine not just institutional independence but also judges independence to understand current issues related to the role of ethics and conduct of judges. The independence of the Indonesian Constitutional Court supported by the 1945 Constitution after the amendments from 1999 until 2002, and further stipulated in Law. However, it can be said that this institution has ups and downs of public trust due to corruption cases conducted by constitutional justices. Also, in several political instances showed efforts of political institutions to limit the authority of the Constitutional Court. In its experiences, the Constitutional Court succeeded in convincing the parties through its decisions and strengthening institutional independence against the influence that tried to destabilize its institutions. The Council of Ethics of Constitutional Judges that maintains the values and behavior of judges also continuously works and efficient enough in overseeing the ethics and conduct of judges. The decision of the Ethics Council may also be accepted as a proportional decision.

The Legal Logic of the Collapse on Non-Retroactive Doctrine in the Constitutional Court Decision Muda, Iskandar
Constitutional Review Vol 3, No 1 (2017)
Publisher : The Constitutional Court of the Republic of Indonesia

The non-retroactive doctrine as a legal principle did not apply retroactively. In legal system of Indonesian; Article 28I paragraph (1) of 1945 Constitution determines that a human right can not be prosecuted based on retroactive law as well as rights that can not be reduced under any circumstances. Similarly Article 58 of Law No. 24 Year 2003 concerning Constitutional Court determines that a Law is being reviewed by the Constitutional Court is still applied, before there is decision stated that the law is contrary to the 1945 Constitution. However, with the use of âlegal logic of implication relationshipsâ in Constitutional Court Decision No. 110-111-112-113/PUU-VII/2009, the decision was made retroactive and it become the jurisprudence for the Constitutional Court Decision No. 5/PUU-IX/2011 and Decision No. 13/PUU-XI/2013.

The Constitutional Will In Human Rights Protection For Refugees Agustine, Oly Viana
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 âeveryoneâ 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.

Constitutional Retrogression in Indonesia Under President Joko Widodo's Government: What Can the Constitutional Court Do? Satrio, Abdurrachman
Constitutional Review Vol 4, No 2 (2018)
Publisher : The Constitutional Court of the Republic of Indonesia

This paper examines whether constitutional retrogression, the process through which democratically elected rulers use formal legal measures gradually to undermine democracy, has occurred in Indonesia, especially during the reign of President Joko Widodo. To this end, the paper analyzes the impact of the Widodo government's policies on three fundamental requirements of a democratic state: a democratic electoral system, rights to speech and association, and the rule of law. The paper finds that Widodo's government, in its efforts to contain the threat of Islamist populism, has indeed undermined all three of these elements to varying degrees. While Indonesia's democracy may yet be saved by the Constitutional Court, an institution that Widodo's government has until now failed to control, the Court cannot save democracy by itself. Its chances of doing so will depend on public support.

Harmonization of Regulation Based on Pancasila Values Through the Constitutional Court of Indonesia Sudrajat, Tedi
Constitutional Review Vol 4, No 2 (2018)
Publisher : The Constitutional Court of the Republic of Indonesia

The legal system which is adopted and applied in Indonesia was based on the formation from the founding fathers which is adjusted to the condition and the spirit of Indonesia as a nation known for its legal system as Pancasila. Ideally, Pancasila serves as the philosophy for the nation of Indonesia, as state's ideology and as the basis of the state. However, in reality, vertical conflicts (government and society) and horizontal conflict (inter-society) have created a variety of concerns, in which the sense of nationalism and diversity has diminished. The trigger is because Pancasila can only be understood as the ideology and the basis of the state, without saturating the meaning contained therein. The paradigm development of Pancasila based on legal state should demand the development of a democratic constitutional state, which juxtaposes the principles of a rule-of-law (nomocracy) with harmonious and complementary principles of the sovereignty of the people (democracy). This role can be solved by the Constitutional Court to harmonize the ideology of Pancasila in the Indonesia legal substance. When the legal development is integrated into meaning, the legal development which characterized by Pancasila can be realized to resolve the variety of community conflicts.

Page 4 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