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[Proportionality Test in the 1945 Constitution: Limiting Hizbut Tahrir Freedom of Assembly ]]>
<![CDATA[Giri Ahmad Taufik]]>
<![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/consrev413
<![CDATA[In May 2017, Jokowi’s 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 HTI’s 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.]]>
<![CDATA[Is The Constitutional And Legal Recognition Of Traditional Community Laws Within The Multicultural Country Of Indonesia A Genuine Or Pseudo Recognition? ]]>
<![CDATA[I Nyoman Nurjaya]]>
<![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/consrev123
<![CDATA[Indonesia is well known amongst Southeast Asian countries for it multi- cultural identity in terms of ethnicity, religion, race and social stratification. Indonesia embodies its motto of Unity in Diversity, which refers to the culturally rich configuration of Indonesia, containing cultural capital and cultural power. However, cultural diversity also yields conflict due to inter-ethnic and inter- religious disputes that have the potential to generate social disintegration and even threaten the fragmentation of Indonesia as a Nation State. In the eyes of legal anthropologists, sources of conflict are often based on discriminatory policies expressed within the State’s law and legislation with regard to the recognition and protection of local communities across the country, namely ‘adat’ communities practising traditional, customary law, known as ‘adat’. Thus, State laws enacted and enforced by the Government tend to dominate and marginalise, even ignore the rights of the local communities, particularly regarding access to and control over natural resources, which is otherwise governed by the adat law of the region. This paper attempts to offer an answer to the fundamental question of whether the 1945 Constitution recognises and protects the traditional communities and their adat laws by employing a legal anthropological approach, with the purpose of obtaining a better understanding of development of State law in a multicultural Nation and looking towards a more just and equitable Indonesian State law.]]>
<![CDATA[Seeking Transitiona Justice In Indonesia: Lessons From The Cases of Aceh, Papua And East Timor ]]>
<![CDATA[Munafrizal Manan]]>
<![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/consrev124
<![CDATA[This article analyses the Indonesian efforts to resolve past human rights abuses under the mechanism of transitional justice following the downfall of President Soeharto on May 21, 1998. The focus of analysis is the implementation of transitional justice in the cases of Aceh, Papua, and East Timor during the transitional period. This article shows that the efforts to enforce transitional justice in these cases have been faced with obstacles. Although there have been notable efforts in terms of both judicial and non-judicial to enforce transitional justice, the final results are not satisfactory. Transitional justice mechanism to resolve past human rights abuses was implemented only with half-baked and supported with half-hearted. As a result, it has failed to bring justice for the victims. There are lessons can and should be learned from these transitional justice cases for resolving other past human rights abuse cases in Indonesia today. The current Indonesian government should pay attention to the lessons in order to resolve past human rights violations in accordance with its promise during presidential election campaign in 2014. Otherwise, it is likely to repeat the same mistake and failure of justice dealing with past human rights violations.]]>
<![CDATA[Mainstreaming Human Rights in the Asian Judiciary ]]>
<![CDATA[Desi Hanara]]>
<![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/consrev414
<![CDATA[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 (‘the Court’) 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 Court’s 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 Court’s 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.]]>
<![CDATA[The Strong State And Pancasila: Reflecting Human Rights in the Indonesian Democracy ]]>
<![CDATA[Zezen Zaenal Mutaqin]]>
<![CDATA[ Constitutional Review Vol 2, No 2 (2016) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev221
<![CDATA[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.]]>
<![CDATA[Revisiting Liberal Democracy and Asian Values in Contemporary Indonesia ]]>
<![CDATA[Muhammad Bahrul Ulum]]>;
<![CDATA[Nilna Aliyan Hamida]]>
<![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/consrev415
<![CDATA[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 Asia’s particular history and values different considerably from the West’s, and that Pancasila, Indonesia’s 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 Indonesia’s 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 Indonesia’s founding years severely diminished human rights and Indonesia’s 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.]]>
<![CDATA[Election Design Following Constitutional Court Decision Number 14/PUU-XI/2013 ]]>
<![CDATA[Fajar Laksono]]>;
<![CDATA[Oly Viana Agustine]]>
<![CDATA[ Constitutional Review Vol 2, No 2 (2016) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev223
<![CDATA[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.]]>
<![CDATA[The Obligation of the Constitutional Court of Indonesia to Give Consideration in the Process of Dissolution of Societal Organizations ]]>
<![CDATA[Putra Perdana Ahmad Saifulloh]]>
<![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/consrev416
<![CDATA[The government efforts to dissolve the societal organizations must be carried out in accordance of stages and processes stipulated in the Law on Societal Organizations. Persuasive efforts must be done first before the imposition of administrative sanctions. Administrative sanctions in the form of warning letters and temporary suspensions of activities need to be done before the Government dissolves the societal organizations after a court decision was obtained from the permanent legal force. The writer considered that the dissolution of societal organizations by the Government was urgent for the present, but the Government before dissolving societal organizations should seek consideration from the Constitutional Court of Indonesia as the guardian, and interpreter of Pancasila. Thus, the Constitutional Court of Indonesia as a neutral judicial institution shall have the authority to consider whether a societal organization will be dissolved.]]>
<![CDATA[Dynamics of the Obligation to Register Birth Certificates as a part of the Right to Issuance Population Documents ]]>
<![CDATA[Winda Wijayanti]]>
<![CDATA[ Constitutional Review Vol 2, No 2 (2016) ]]>
Publisher : <![CDATA[The Constitutional Court of the Republic of Indonesia ]]>
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DOI: 10.31078/consrev224
<![CDATA[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.]]>
<![CDATA[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) ]]>
<![CDATA[Faiq Tobroni]]>;
<![CDATA[Izzatin Kamala]]>
<![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/consrev216
<![CDATA[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).]]>
