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Constitutional Review

const-rev
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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 Malaysian Federal Constitution: An Islamic or a Secular Constitution? A. Rahman, Syed Fadhil Hanafi Syed
Constitutional Review Vol 5, No 1 (2019)
Publisher : The Constitutional Court of the Republic of Indonesia

Constitutionalism dictates that the government must only act within the four walls of the constitution. While adherence to this fundamental doctrine is proven to be difficult, it becomes more complicated when the walls are unclear. For decades, Malaysians struggle to ascertain the actual legal value of religion, particularly Islam, in its Federal Constitution and the impact of religion to the Malaysian legal system. Some opined that secularism is a basic structure of the Malaysian Federal Constitution and in the name of constitutionalism, religious laws cannot be the basis for administration of public law and must be confined to personal law matters. On the other hand, some opined that Islam constitutes a salient feature of the Constitution and the position of Islam as the religion of the Federation implies Malaysia as an Islamic state. This paper analyses the conflicting views, via qualitative studies of constitutional provisions which have religious element in the light of their history, together with relevant case laws which interpreted them. The analysis is done with a view to determine whether the Malaysian Federal Constitution is a secular instrument creating a secular state or a religious document establishing a theocratic state. From such analysis, the author presents that the Malaysian Federal Constitution, albeit giving special preference to Islam, is a religion-neutral document which is receptive to both religious and secular laws. This is based on the fact that the Constitution upholds the validity of both secular and religious laws for as long as they are enacted according to procedural laws required by the Constitution.

The Return of Pancasila: Political and Legal Rhetoric Against Transnational Islamist Imposition Arizona, Yance
Constitutional Review Vol 5, No 1 (2019)
Publisher : The Constitutional Court of the Republic of Indonesia

The rise of transnational Islamist movements in Indonesia in the last two decades recurrences the old debate between Pancasila and Islamism. This kind of fundamental Islamic movements widespread with their conservative view and it has had detrimental effects on the Indonesian society?s social cohesion. President Joko Widodo seeks to revive Pancasila to confront this threat. This is not for the first time Pancasila is used by the Indonesian government to resolve the tension between Islamic values and nation-state principles. Both President Sukarno and Suharto also used Pancasila as a vehicle to discipline their political opponents. Adopting a non-essentialist approach to Pancasila, I argue that the return of Pancasila in recent years would be more complicated because of the narrative of Pancasila revivalism as an adversarial ideology is bounded by traditionalism and lack of progressive interpretation. Instead of locating Pancasila as the counterpart to Islamism, what is needed is re-interpretation of Pancasila as a unifying ideology.

Indonesian Chinese Diaspora, Dual Citizenship And Indonesian Development Sitabuana, Tundjung Herning
Constitutional Review Vol 1, No 1 (2015)
Publisher : The Constitutional Court of the Republic of Indonesia

Indonesian Citizenship Law Policy, in accordance with Article 26 Paragraph (1)of the 1945 Constitution and Act Nr. 12/2006, is closed in nature and does not recognize dual citizenship. Community members of the Indonesian Chinese Diaspora who hold foreign nationalities do not have the legal standing to file applications to the Constitutional Court for constitutional review of Act Nr. 12/2006 in an effort to obtain Indonesian citizenship, because they are not Indonesian citizens. In order for an individual to be able to obtain Indonesian citizenship without losing his or her foreign nationality, the principle of dual citizenship must be applied within the Indonesian Citizenship Law Policy. This can happen if a legislative review on or an amendment to the act (in this case Act Nr. 12/2006 regarding the Citizenship of the Republic of Indonesia) is conducted by Parliament. Thus the Government of the Republic of Indonesia must be absolutely sure and able to fully assure Parliament that Indonesia has a genuine need for the Indonesian Chinese Diaspora, because they have great potentials and can play an important role in Indonesia?s development, both in terms of the quality of human resources that have been proven and tested abroad, as well as the capital that can be invested in Indonesia.

Bosnia-Herzegovina: The Role of the Judiciary in a Divided Society Marko, Joseph
Constitutional Review Vol 5, No 2 (2019)
Publisher : The Constitutional Court of the Republic of Indonesia

This paper analyzes the role of the Constitutional Court of Bosnia and Herzegovina for the promotion of social justice under the conditions of a triple transformation from war to peace and from a communist regime based on the Titoist self-management ideology to a liberal-democratic political regime and economic market system in three parts. The first section describes the political, constitutional and economic context during and after the collapse of the former Socialist Federal Republic of Yugoslavia and the war in Bosnia-Herzegovina. The second section describes and analyzes the constitutional and institutional arrangements established under the General Framework Agreement for Peace, concluded in Dayton/Ohio and Paris, 1995. The third section deals with the role of the Constitutional Court and analyzes with reference to its case law the interpretative doctrines developed in its adjudication of the right to property concerning different concepts of property and the right to work in the context of the constitutionally guaranteed right to return of refugees and restitution of property.

Constitutional Change: Towards Better Human Rights Protection in Australia Ibrahim, Mohammad
Constitutional Review Vol 5, No 2 (2019)
Publisher : The Constitutional Court of the Republic of Indonesia

Many legal scholars contend that Australia does not have a charter of rights in its Constitution. The legal scholar Rosalind Dixon, however, suggests that the Constitution does include some provisions that could be viewed as resembling a (partial) bill of rights. This constitutional framework might cause one to ponder whether human rights are adequately protected in the Australian constitutional system. This paper attempts to consider this question. It is argued that the protection of human rights under the Constitution, federal and state laws is not fully capable of responding to at least three human rights crises presented. Accordingly, the paper suggests that Australia should consider the idea of amending the Constitution in order to better human rights protection in the country. It offers suggestion that the Canadian model protection of human rights could be considered as one of the primary sources for reforms in the future.

Constitution without Constitutionalism? Challenges to constitutionalism in the Kyrgyz Republic Toktogazieva, Saniia
Constitutional Review Vol 5, No 2 (2019)
Publisher : The Constitutional Court of the Republic of Indonesia

Application of basic principles revolving around the constitutionalism into third wave democracies, produced such phenomenon as constitutions ?without constitutionalism?. This paper will revisit and discuss this issue in the context of the Kyrgyz Republic. Main argument and thesis of the paper is following: Where a viable balance of power exists, a constitutional court acquires importance as a key element of that order, thus promoting the constitutionalism. If no such balance exists, the constitutional court will soon become a tool of the more dominant powers and thus lose its relevance for a genuine constitutional order. The abovementioned thesis will be demonstrated by the example of the work of Constitutional Court of the Kyrgyz Republic. Mainly it first aims at providing a proper foundation and basic understanding of constitutionalism, further revisiting this concept in the context of Former Soviet Union and finally will discuss the development of constitutionalism in Kyrgyzstan along with challenges faced by the court.

Defining Judicial Independence and Accountability Post Political Transition Chandranegara, Ibnu Sina
Constitutional Review Vol 5, No 2 (2019)
Publisher : The Constitutional Court of the Republic of Indonesia

Indonesian constitutional reform after the fall of Soeharto?s New Order brings favorable direction for the judiciary. Constitutional guarantee of judicial independence as regulated in Art 24 (1) of the 1945 Constitution, has closed dark memories in the past. This article decides that the Judiciary is held by the Supreme Court and the judicial bodies below and a Constitutional Court. Such a strict direction of regulation plus the transformation of the political system in a democratic direction should bring about the implementation of the independent and autonomous judiciary. But in reality, even though in a democratic political system and constitutional arrangement affirms the guarantee of independence, but it doesn?t represent the actual situation. There are some problems that remain, such as (i) the absence of a permanent format regarding the institutional relationship between the Supreme Court, the Constitutional Court, and the Judicial Commission, and (ii) still many efforts to weaken judiciary through different ways such criminalization of judge. Referring to the problem above, then there are gaps between what "is" and what "ought", among others. First, by changing political configuration that tends to be more democratic, the judiciary should be more autonomous. In this context, various problems arise such as (i) disharmony in regulating the pattern of relations between judicial power actors, (ii) various attempts to criminalize judges over their decisions, and (iii) judicial corruption. Second, by the constitutional guarantee of the independence of the judiciary, there will be no legislation that that may reduce constitutional guarantee. However, there are many legislation or regulations that still not in line with a constitutional guarantee concerning judicial independence. This paper reviews and describes in-depth about how to implement constitutional guarantees of judicial independence after the political transition and conceptualize its order to strengthen rule of law in Indonesia

Shifting the Character of the Constitutional Court Decision Influenced by Political Constellation in Indonesia Hastuti, Proborini
Constitutional Review Vol 5, No 2 (2019)
Publisher : The Constitutional Court of the Republic of Indonesia

Recently, the decisions of the Constitutional Court have become one of the focuses in the dynamics of Indonesian state administration. This research discusses the relevance of political constellation in Indonesia and its influence on the changing character of several constitutional court decisions from self-executing to non-self executing. This research aims to find out how the legal impact of shifting the character of the Constitutional Court?s decision in its implementation. This research is a normative study supported by a law, case and conceptual approach. The data used are secondary data, obtained by means of a literature research which is then arranged systematically and analyzed with qualitative analysis. From the results of the analysis it is known that the shift in the character in several decisions of the Constitutional Court was carried out as an effort to offset the political constellation in the legislators. The character shift is done in the hope that it can guarantee the execution of the Constitutional Court?s ruling and can be followed up on by the decision of the ruling. This shows that Constitutional Court judges are trying to find a legal breakthrough in the corridor of judicial activism to make an ideal constitutional review decision.

Green Development Rights For Optimizing Urban Area And Coastal Areas In Indonesia (Consitency Of The State Of The Doctrine Of The Right To Control The State) Handayani, I Gusti Ayu Ketut Rachmi
Constitutional Review Vol 2, No 1 (2016)
Publisher : The Constitutional Court of the Republic of Indonesia

The green development right paradigm will elaborate the ontology (nature), and the ways or methods in order to achieve the ultimate goal of the green development right. This ultimate goal will be focused on the creation of the ideal maritime systems that may guarantee all related parties, such as individual, society, or community, private sectors and the government, to convert their potentials to be functional towards public welfare. The core elements of the green development right will emphasizes the series of norms in managing the coastal and frontline island potentials. The normative framework covers Environmental Law, Fishery Law, and Coastal Law. The research methods use an empirical approach and normative approach. The study documents the analysis consists of constitutions, legislation and various policies relating to the subject matter studied in Indonesia area and the problems it faces and report the results of the various meetings, seminars, public hearings.

The Protection of Economic, Social and Cultural Rights in International Law Strydom, Hennie
Constitutional Review Vol 5, No 2 (2019)
Publisher : The Constitutional Court of the Republic of Indonesia

This contribution commences with a brief overview of the origin of economic, social and cultural rights and their eventual codification in the 1966 International Covenant on Economic, Social and Cultural Rights. The main part then focuses, firstly, on the nature and scope of state obligations for the realization of Covenant rights and the enforcement mechanisms created under the Covenant and its Optional Protocol, and secondly, on the role of the UN Human Rights Council and the UN Security Council. In the conclusion, three contemporary developments are highlighted which could open up new areas in which economic, social and cultural rights could find further application.

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Home Page

OAI Link

Editorial Team

Contact

Reviewer

Google Scholar

Contact Name Pan Mohamad Faiz

Contact Email Pan Mohamad Faiz

Phone -

Journal Mail Official consrev@mahkamahkonstitusi.go.id

Editorial Address -

Location Kota adm. jakarta pusat, Dki jakarta INDONESIA

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Contact Name
Pan Mohamad Faiz

Contact Email
Pan Mohamad Faiz

Phone
-

Journal Mail Official
consrev@mahkamahkonstitusi.go.id

Editorial Address
-

Location
Kota adm. jakarta pusat,

Dki jakarta

INDONESIA