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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
38
Articles
Relation between the Constitutional Court of the Republic of Indonesia and the Legislators according to the 1945 Constitution of the Republic of Indonesia

Laksono, Fajar, Sudarsono, Sudarsono, Hidayat, Arief, Safaat, Muchammad Ali

Constitutional Review Vol 3, No 2 (2017)
Publisher : The Constitutional Court of the Republic of Indonesia

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Abstract

This research aims to analyze and to describe the relation between the Constitutional Court of the Republic of Indonesia (CC) with the People Representatives’ Council and the President of the Republic of Indonesia as legislators by looking on implementation of CC’s decision through the legislation in the period 2004-2015. Using doctrinal research, it can be seen how the constitutional mandate in the CC’s decision are implemented by the legislator through the legislation. The results are: (a) legal opinions of the CC’s decision have a binding power; (b) a constitutional mandate in the legal opinion is intended as guidance for the legislators regarding what the 1945 Constitution requires; (c) directives to the legislator in the legal opinions should be implemented because it is the implementation of the principle of checks and balances according to the 1945 Constitution, (d) implementation of the CC’s decisions through legislation does not have standard mechanism and does not become the priority of legislation, and (e) relation between the CC with the legislators can not be categorized in black and white in cooperative or confrontative, but shows ups and downs between cooperative and confrontative relations. Cooperative relations are realized when the constitutional mandate is formulated strongly so it is implemented by the legislator as the formula. Relationships tend to be cooperative in the implementation of the constitutional mandate of the decision, but not a priority of legislation. Meanwhile, the confrontative relations is seen from the constitutional mandate of the CC decisions which are not implemented.

Laws of Ratification of an International Treaty in Indonesian Laws Hierarchy

Sidharta, Noor

Constitutional Review Vol 3, No 2 (2017)
Publisher : The Constitutional Court of the Republic of Indonesia

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Abstract

This journal article discusses the laws of ratification of an international treaty in Indonesian laws hierarchy. This journal uses a normative research approach where a draft agreement and laws are used as primary data apart from the laws and international treaties. There are some issues that still unsettled related to the legal status of the laws of ratification of an international treaty that have impacts in the implementation of the treaty. The laws of ratification of an international treaty now is still classified as general laws whose the content of the norm has been discussed by the People’s Representatives Council, therefore the laws of ratification of an international treaty automatically become the object of Judicial Review at the Constitutional Court of the Republic of Indonesia. The cancellation of the laws of ratification of an international treaty impacts the cancellation of the deal on the treaty and it has failed the pacta sunt servanda principle, which becomes the basis of a treaty. To solve problems related to the cancellation of laws of ratification of an international treaty at the Constitutional Court, there are several efforts on state administration by classifying the laws which differ the general laws from the laws whose contents are related to the international treaty. Furthermore, a progressive new method on the state administration is needed by giving a Judicial Preview right to the Constitutional Court to conduct a review on the bill of the ratification of an international treaty based on its suitability to the constitution.

The Indonesian Constitutional Court and the Democratic Institutions in Judicial Review

Omara, Andy

Constitutional Review Vol 3, No 2 (2017)
Publisher : The Constitutional Court of the Republic of Indonesia

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Abstract

This paper focuses on the relationship between the Indonesian Constitutional Court, the legislature, and the executive in judicial review. It aims to explain the Court strategies in deciding judicial review cases related to the right to work in relation with the executive and the legislature. It appears that while constitutionally the Court is granted with a strong form of judicial review (as reflected in the finality of its decisions), it also employed other approaches in deciding cases related to the right to work. These approaches include the declaration of incompatibility, conditional decision, and the invalidation of a statute in its entirety. This paper argues that Katharine G. Young’s typology of judicial review is quite helpful as an interpretive tool to understand the Court approaches when it decided cases related the right to work. The use of various approaches by the Court affected the relationship between the Court, the executive, and the legislature. This is because the executive and the legislature are the implementing agencies of the Court rulings.

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

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Abstract

The Constitutional Court of Indonesia, in its judgment No 2-3/PUU—V/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 applicants’ constitutional loss which should actually serve as the substantial examination in judicial review but rather addressed this question on the basis of applicant’s citizenship. This inadmissibility ruling, however, raises question on what legal standing actually mean in the context of judicial review. This paper reviews the Court’s 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, Court’s 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 Court’s 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 Qur’aini

Constitutional Review Vol 3, No 2 (2017)
Publisher : The Constitutional Court of the Republic of Indonesia

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Abstract

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 “Open Legal Policy” 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

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Abstract

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).

The Function of Judicial Dissent in Indonesia’s Constitutional Court

Butt, Simon

Constitutional Review Vol 4, No 1 (2018)
Publisher : The Constitutional Court of the Republic of Indonesia

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Abstract

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.

Filling the Hole in Indonesia’s Constitutional System: Constitutional Courts and the Review of Regulations in a Split Jurisdiction

Lindsey, Tim

Constitutional Review Vol 4, No 1 (2018)
Publisher : The Constitutional Court of the Republic of Indonesia

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Abstract

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.

Proportionality Test in the 1945 Constitution: Limiting Hizbut Tahrir Freedom of Assembly

Taufik, Giri Ahmad

Constitutional Review Vol 4, No 1 (2018)
Publisher : The Constitutional Court of the Republic of Indonesia

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Abstract

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.

Mainstreaming Human Rights in the Asian Judiciary

Hanara, Desi

Constitutional Review Vol 4, No 1 (2018)
Publisher : The Constitutional Court of the Republic of Indonesia

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Abstract

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.