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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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Architecture of Indonesia's Checks and Balances Ibnu Sina Chandranegara
Constitutional Review Vol 2, No 2 (2016)
Publisher : The Constitutional Court of the Republic of Indonesia

Research on "checks and balances" in legal studies often raises high quality questions such as, is the checks and balances a doctrine, principle, or legal theory, or maybe precisely the formula of power in politics. History has been recorded that in any discussions regarding the formation of the constitutional separation, division and smelting power is something that is popular to be discussed before and even after becoming the constitution. Therefore, the casting of checks and balances into the constitution is an interesting study to determine the portion and posture. This study used using legal normative methodology. In addition, comparative studies on constitution was conducted using classic and modern constitutional law literature. Several approaches were used on this research such as, historical, political, economical approach on understanding the practice on checks and balance which stated in constitutions in some countries.

Megapolitical Cases before the Constitutional Court of Indonesia since 2004: An Empirical Study Björn Dressel; Tomoo Inoue
Constitutional Review Vol 4, No 2 (2018)
Publisher : The Constitutional Court of the Republic of Indonesia

The Constitutional Court of Indonesia is considered one of Asia’s most activist courts. Here we investigate empirically possible determinants of the decisions of its judges over the period 2003–18. The findings are based on a unique data set of 80 high-profile political cases, complemented by data on the socio-biographic profiles of 26 judges who served during that period. Testing for common perceptions of the Constitutional Court since its inception, we first describe patterns in judicial decision-making across time and court composition before testing specifically for the impact of the judges’ professional backgrounds, presidential administrations, the influence of the Chief Justice, and cohort behaviour. The analysis finds declining dissent among justices on the bench over time and also provides evidence of strategic behaviour of justices at the ending of their own terms. But there is little statistical evidence that judicial behaviour has been affected by work background (except for those coming from the executive branch), appointment track or generation – hence suggesting that justices seem to retain more independence than the public seems to perceive. We then discuss the results in the context of Indonesia’s evolving constitutional democracy and look at the implications for comparative studies of judicial behaviour.

Indonesia’s Judicial Review Regime in Comparative Perspective Theunis Roux
Constitutional Review Vol 4, No 2 (2018)
Publisher : The Constitutional Court of the Republic of Indonesia

This paper provides a comparative perspective on judicial review in Indonesia after the establishment of the Constitutional Court in 2003. It starts by retelling the well-known story of the "transformation of American law" over the first half of the last century. As narrated by Morton Horwitz, that story is about how nineteenth-century industrialisation processes destabilised the premises of "Classical Legal Thought", and then about how the legal realist movement exploited the ensuing crisis to transform the way Americans think about law and its relationship to other social systems. Mining this story for generalisable concepts, the paper argues that the establishment of strong-form judicial review necessarily draws on and, in turn, influences prevailing conceptions of legal and political authority. These conceptions vary along a continuum, in the first case, from public confidence in law's autonomy to a conception of law as deeply immersed in politics, and, in the second case, from a conception of legitimate political authority as contingent on a fairly won democratic mandate to a conception of political authority as residing in the power holder's capacity to promote important social goals, such as national security or economic prosperity. Each of these variables may change independently of the other. In certain situations, however, they may also combine to form a relatively stable judicial review regime – a hegemonic legitimating ideology in which conceptions of legal and political authority lock into and mutually support each other. The fourth section uses this conceptual framework to assess the Indonesian Constitutional Court's approach to its mandate after 2003. Under its first two chief justices, the paper notes, the Court engaged in a concerted effort to build public understanding of its legitimate role in national politics. The Court's abrupt switch between its first Chief Justice, Jimly Asshiddiqie's legalist conception of law's authority and his successor, Mohammad Mahfud's more instrumentalist conception, however, has impeded the consolidation of a determinate judicial review regime. Given the considerable threats still confronting Indonesia's democracy, this situation is worrisome. The Court urgently needs to present a coherent account of its legitimate claim to authority if it is to continue playing an effective role.

Korean Constitutional Court and Constitutionalism in Political Dynamics: Focusing on Presidential Impeachment Jin Wook Kim
Constitutional Review Vol 4, No 2 (2018)
Publisher : The Constitutional Court of the Republic of Indonesia

The Constitutional Court of Korea, which should be a product of the June Democracy Movement in 1987, has transformed Korea's constitutionalism ever since its inception. The recent two impeachment cases decided respectively in 2004 against President Roh and in 2017 against President Park might be classic examples of how the state institutions including the Court interact with other institutions in a very political case in terms of political dynamics. In the impeachment case against President Roh, the Court positioned itself strategically by establishing the 'grave violation of law’ rationale, where it sided with the impeaching parliament by finding three counts of violations of law but dismissed the case in its entirety through the operation of the 'grave violation of law'. In the impeachment case against President Park, the Court basically followed the grave violation logic but reached a different conclusion to remove the President, which might be another strategic position taken by the Court, which is in line with the will of the super-majority of the Korean public. This paper aims to discuss how the Constitutional Court has developed its strategic position in terms of political dynamics, by analyzing the two presidential impeachment cases.

Referencing International Human Rights Law In Indonesian Constitutional Adjudication Bisariyadi Bisariyadi
Constitutional Review Vol 4, No 2 (2018)
Publisher : The Constitutional Court of the Republic of Indonesia

The power of the Indonesian Constitutional Court to review laws is a constitutional adjudication process. It is a forum to resolve constitutional issues where a citizen can challenge Law that has injured his rights. The Court's reasoning provides audiences with the debates for its deliberation. Audiences may find reference to the international human rights law. It is an interesting practice. However, there is no studies yet about the information on the statistic of the Court made reference to international human rights law. As such, this study aims to identify reference to international human rights law in the Court's decision on judicial review cases from 2003 to 2016. Additionally, this study also aims to answer the question of what underlies the Court to made reference to international human rights law. As many studies show, the objective of Constitutional Court's references to the international human rights law is to strengthen constitutional rights protection. Nonetheless, the Court did not pay any interests to the global agenda of transnational constitutionalism or a convergence of rights and legal pluralism. The article is divided into 5 (five) sections, commencing with the introduction. The second part discusses the status of international human rights law in Indonesia. As the third presents information on Court's decision which cited international human rights law. Then, the fourth presents typical function of the decision that made reference to international human rights law. It concluded that the practice of referring to international law demonstrates the open attitude of Indonesian constitutional justices to the universal nature of fundamental rights.

Constitutional Retrogression in Indonesia Under President Joko Widodo's Government: What Can the Constitutional Court Do? Abdurrachman Satrio
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 Tedi Sudrajat
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.

The Internationalization of Judicial Review in the Colombian High Courts Juan Sebastián Villamil Rodriguez
Constitutional Review Vol 5, No 1 (2019)
Publisher : The Constitutional Court of the Republic of Indonesia

The internationalization of adjudication in the Colombian high court refers to the growing importance that the American Convention on Human Rights has gained among the judicial forums of this country, but especially to the phenomenon that occurs when national judiciaries implement and appropriate the doctrine of the control of conventionality. The Convention has claimed a high ground in the Colombian constitutional system due to the appropriation of international law by national courts decisions, and to the process of the internationalization of the law. By consistently applying the control of conventionality doctrine, courts like the State Council have reaffirmed the binding nature and the effectiveness of the decisions of the Inter-American Court of Human Rights for the Colombian legal system. In contrast to a much more regressive posture assumed by the Constitutional Court in recent decisions, the State Council, drawing on the legal contents of international law, has broadened the range of legal sources for rights interpretation in Colombia. By this action, as it will be further stated in this article, the State Council has contributed to a move away from a paradigm of a legalism based solely on the state sovereignty and national constitutionalism, towards one that endorses the pluralist structure of post-national law. Against this background, this article aims to discuss how the relationship of national judiciaries with international law is best understood as reflecting the development of a pluralist legal dynamic, sometimes referred to as jurisprudential dialogue, that involves the broadening of the normative horizon and the internationalization of the sources available for national judges in their reasoning; particularly in the cases that involve human rights violations.

Constitutional Preview and Review of International Treaties: France And Indonesia Compared Dewi Nurul Savitri
Constitutional Review Vol 5, No 1 (2019)
Publisher : The Constitutional Court of the Republic of Indonesia

The Indonesian Supreme Court and the Indonesian Constitutional Court are experienced in examining international treaties, although the Indonesian constitution and national laws do not stipulate this matter explicitly. The Constitutional Council of France has the authority to examine judicial previews of bills concerning international treaties. Moreover, French judges can examine international treaties. There is also the European Court of Human Rights, which has an important role concerning the control of conventionality. This article aims to promote discussion about the examination of international treaty cases in Indonesia. It begins by considering the international scholarly literature on integrating international treaties and the rank of international treaties in the national legal system. Then, this article discusses the possibility of the Indonesian Constitutional Court to examine judicial preview of international treaty bills and judicial reviews concerning ratified international treaties.

Political Influence on the Constitutional Court in the Republic of Macedonia: Reflections through the Dissenting Opinions in the Period of 2012-2015 Sonja Stojadinovic
Constitutional Review Vol 5, No 1 (2019)
Publisher : The Constitutional Court of the Republic of Indonesia

The demo Christian political party VMRO-DPMNE had a long period of ruling of the Republic of Macedonia, (2006-2016). During that period many cases of political pressure on the state institutions have occurred. The Constitutional Court wasn’t an excepted of that political pressure. Starting from the process of appointment of new judges, through the shocking decisions upon official citizens’ complaints and human rights appeals, to a complete reflection of the political interference and pressure through the dissenting opinions written and published by some constitutional judges. The former government has used all the tools, legal and non-legal, to put under control the Constitutional Court. If we put aside the political interference into the appointment of new and incompetent judges, one of the most used tools as a form of resistance was the dissenting opinion. This legal tool is present in the Book of Rules of the Constitutional Court of the Republic of Macedonia, but also in the legal systems in the Eastern Europe, Germany, Spain, Greece and all other states whose legal systems are created by the German legal system. It gives space and chance for one or several constitutional judges to express disagreement upon a decision brought by the majority in the court. This tool was frequently used by several judges from the Constitutional Court in the Republic Macedonia in the given period through which we can see strong political influence on their work. Therefore, the research questions are as follows: What were the “models” of political influence that were used on the Constitutional Court during the period of 2012-2015? How were they used and what are the dissenting opinions reflecting? To answer the said questions, the model of qualitative research will be used together with several dissenting opinions as case studies. The aim of this approach is to explain the different aspects of political influence on the work of the Constitutional Court within the given period. The findings of this research can be used for further development of the interest for researching of the work and role of the Constitutional Court in the Republic of Macedonia.

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Abstract

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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