Constitutional Review
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.
Articles
164 Documents
<![CDATA[The Function of Judicial Dissent in Indonesia’s Constitutional Court ]]>
<![CDATA[Simon Butt]]>
<![CDATA[ Constitutional Review Vol 4, No 1 (2018) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev411
<![CDATA[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.]]>
<![CDATA[Identification And Analysis Of The Rights Of Indigenous Peoples In The Study Of Constitutional Law ]]>
<![CDATA[I Gede Yusa]]>
<![CDATA[ Constitutional Review Vol 2, No 1 (2016) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev211
<![CDATA[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.]]>
<![CDATA[The Tenure Arrangement Of Primary Constitutional Organ Leaders In Indonesian Constitutional System ]]>
<![CDATA[Bayu Dwi Anggono]]>
<![CDATA[ Constitutional Review Vol 2, No 1 (2016) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev212
<![CDATA[The tenure arrangement of primary constitutional organ leaders is required as the implementation of power limitation principle and the manifestation of political equality principle as the characteristic of democratic state. The tenure arrangements of primary constitutional organ leaders in Indonesia have four models: tenure arrangement through the 1945 Constitution, tenure arrangement through Law, tenure arrangement which is not regulated by law but regulated in the constitutional organs’ internal regulation, and tenure arrangement which is not regulated by law as well as internal regulation. The problem in this paper is: First, how is the arrangement of leadership tenure in the constitutional organs according to the Indonesian legislation system. Second, how to adjust the arrangement of constitutional organ leader in order to provide legal certainty and prevent conflict that can disrupt organs’ performance. The arrangement through the Constitution is the most powerful model in term of legal certainty regarding that the Constitution is in the highest national legal order and materials related to the structure and organization of primary constitutional organs constitute the Constitution’s substance. The model not regulated in law but regulated in internal regulation prone to cause conflict because every member of the constitutional organs which meets the requirements may change the internal regulation at any time. To avoid this conflict, this paper concludes that it requires the change of regulation regulating the tenure of constitutional organ leaders so that it is no longer regulated in the constitutional organs’ internal regulations, but it is set in the 1945 Constitution or at least in the Law in order to have a better legal certainty.]]>
<![CDATA[Indonesia Constitutional Court Constitutional Interpretation Methodology (2003-2008) ]]>
<![CDATA[Fritz Edwadr Siregar]]>
<![CDATA[ Constitutional Review Vol 1, No 1 (2015) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev111
<![CDATA[Nine Indonesian Constitutional Justices have the authority to annul a law drafted by 550 Parliament members and the President. The Constitutional Court of the Republic of Indonesia (“the Court”), particularly in deciding cases of judicial review, has the capability to declare words, sentences, paragraphs, articles or the law unconstitutional. Consequently, it is essential for the Court to take into account legal arguments. The fundamental element of these legal arguments is constitutional interpretation, which serves as a parameter in determining constitutionality of the laws. However, in exercising its authority, the Court needs to interpret the Constitution as a basis for deciding a case. The standards for determining the constitutionality of a law must be the text of the Constitution, not what the judges would prefer the Constitution to mean. Constitutional supremacy necessarily assumes that a superior rule is what the Constitution says it is, not what the judges prefer it to be. [Craig R. Ducat: E3]. The Court period 2003–2008 were the Court’s the formative years, and as such are important to understand the methodology and interpretative approaches adopted by the Court. Many observers of the Court’s early decisions are still unsure of the overarching approach and methodology adopted by the Court. Thus, there is a need for a close analysis and criticism of the Court’s early decisions to determine which methods and approaches it has adopted and whether these are appropriate in the Indonesian context. The Court has openly referred to the experiences of foreign jurisdiction in constitutional law, and therefore it would be appropriate to analyze the court’s decisions in a broader comparative context of constitutional interpretative approaches from around the world.]]>
<![CDATA[Convergence or Borrowing: Standing in The Indonesian Constitutional Court ]]>
<![CDATA[Stefanus Hendrianto]]>
<![CDATA[ Constitutional Review Vol 1, No 1 (2015) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev112
<![CDATA[This Article addresses the constitutional convergence theory by examining the standing rule in the Indonesian Constitutional Court. The central investigation of this paper is whether the application of standing doctrine in the Indonesian Constitutional Court is evidence of constitutional convergence or of borrowing? This paper argues that the Constitutional Court jurisprudence on standing indicates that constitutional convergence has never taken place but rather the Court has engaged in constitutional borrowing. Legal borrowing on standing is limited to the carbon copy of the five-prong standing tests of the U.S. model, but in reality standing doctrine in the Indonesian Constitutional Court is not based on the private rights model of adjudication. Although the Court allows individuals to bring cases before the Court, it is rather a quasi-public model of standing, in which claimants no longer have standing only to vindicate their own private rights but can also sue to vindicate public interests. Standing requirements also allow the judges to review many highly sensitive political cases, and to some extent it enables the Court to second guess the decisions of the different branches of government.]]>
<![CDATA[Filling the Hole in Indonesia’s Constitutional System: Constitutional Courts and the Review of Regulations in a Split Jurisdiction ]]>
<![CDATA[Tim Lindsey]]>
<![CDATA[ Constitutional Review Vol 4, No 1 (2018) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev412
<![CDATA[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 Korea’s Constitutional Court, a court in an Asian civil law country with a split jurisdiction for judicial review of laws like Indonesia’s. 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 Indonesia’s Constitutional Court should follow South Korea’s example, in order to prevent the possibility of constitutionalism being subverted by unconstitutional subordinate regulations.]]>
<![CDATA[The Role of the Indonesian Constitutional Court for An Effective Economic, Social and Cultural Rights Adjudication ]]>
<![CDATA[Heribertus Jaka Triyana]]>
<![CDATA[ Constitutional Review Vol 1, No 1 (2015) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev114
<![CDATA[The Indonesian Constitutional Court has played important roles and functions to protect and fulfill human rights in the Indonesian legal system including the economic, social and cultural rights through its legal power of judicial review. It affirms that the ecosoc rights are legal justiciable rights and they are parts of constitutional mandates. It means that decision on judicial reviews require State to behave in accordance to legal thresholds decided by the Court. Undoubtedly, compliance to the decisions will reveal undeniable facts for fulfilment of state conduct. However, it seems that there are still many considerations, emphasis and excuse to somehow reduce or ignore threshold of application of the Court decisions. Complexity of actors, institutions, authorities, level of implementation, and orientation of particular policies, programs, actions and funds reduces the thresholds.]]>
<![CDATA[The Constitutional Court’s Role in Consolidating Democracy and Reforming Local Election ]]>
<![CDATA[Iwan Satriawan]]>;
<![CDATA[Khairil Azmin Mokhtar]]>
<![CDATA[ Constitutional Review Vol 1, No 1 (2015) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev115
<![CDATA[Within the same group as the USA and India Indonesia is one of the largest democracies in the world. After experiencing authoritarian rule for a few decades since its independence the country finally at the beginning of the twenty first century managed to chart along its new direction along democratic course and values. More than a decade has passed since the democratic transition begun yet the country still faces various constitutional dilemmas and enigmas. One of organs of the government which has been entrusted to transform the country into a democratic nation is the Constitutional Court. The objective of this paper is to provide critical analyses of the role of the Constitutional Court of Indonesia in the process of consolidating local democracy. The scope of analysis is confined to a number of important cases heard by the court on local election disputes from the year 2008 to 2013. The rationale to focus on local election is because local government provides the second layer of government for this unitary country making the governance more democratic and more in touch with local population. The result of the study is the Constitutional Court through its decisions has created conducive political situation and has provided significant contributions in the process of consolidating local democracy. In spite of limited number of judges and short period of settlement to disputes brought before it the Court have settled all disputes regarding local elections without much delay and complaint. Nevertheless there are some areas that need to be addressed by the court to enhance its efficiency and effectiveness. A few factors have been identified to be the cause of the problems namely problem of design of structure of the Court, extension of the scope of authority, period of settlement, over-dosis of authority and the breach of code of ethics of the judges.Thus it is recommended that in order to perpetuate the excellent achievements of the court the institution need to be strengthened by addressing the problems.]]>
<![CDATA[Human Rights Constitutionalism in Indonesia’s Foreign Policy ]]>
<![CDATA[Herlambang P. Wiratraman]]>
<![CDATA[ Constitutional Review Vol 1, No 1 (2015) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev116
<![CDATA[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.]]>
<![CDATA[Universalization of Democratic Constitutionalism and The Work of Constitutional Courts Today ]]>
<![CDATA[Jimly Asshiddiqie]]>
<![CDATA[ Constitutional Review Vol 1, No 2 (2015) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev121
<![CDATA[Modern constitutions with its content of values and legal norms and universal ethics contained therein continuously in????uence the paradigm of thought and the system of practice and constitutional democratic political regimes in the world. We may say that nowadays we are in the midst of the current development of new thoughts in the study of constitution and the practice of constitutional judiciary in the world, namely the phenomenon of “universal democratic constitutionalism.” Indonesia and all the states are experiencing the development of the same in????uence, so that way of wor????ing of the Constitutional Court as an institution to safeguard democracy and being the upholder of the constitution shall also catch the moral signs and messages behind that new development with a critical stance, so that each of its decisions can truly produce justice, certainty, and is solvent in nature vis-à-vis the constitutional problems occurring in the public of the respective states.]]>
