cover
Contact Name
Pan Mohamad Faiz
Contact Email
Pan Mohamad Faiz
Phone
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Journal Mail Official
consrev@mahkamahkonstitusi.go.id
Editorial Address
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Location
Kota adm. jakarta pusat,
Dki jakarta
INDONESIA
Constitutional Review
ISSN : 24600016     EISSN : 25483870     DOI : -
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 44 Documents
Universalization of Democratic Constitutionalism and The Work of Constitutional Courts Today Asshiddiqie, Jimly
Constitutional Review Vol 1, No 2 (2015)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Original Source | Check in Google Scholar | Full PDF (224.024 KB) | DOI: 10.31078/consrev121

Abstract

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.
Approaches Of The Constitutional Court Of The Russian Federation Towards Freedom Of Expression And Freedom Of Assembly Taribo, Eugenie; Kuznetcov, Dmitrii
Constitutional Review Vol 1, No 2 (2015)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Original Source | Check in Google Scholar | Full PDF (214.481 KB) | DOI: 10.31078/consrev122

Abstract

The paper consists of seven sections describing the Constitutional Court’s practice in respect of freedom of expression and freedom of assembly issues. The matters covered by the paper includes challenges of the constitutionality of laws forbidding civil servants to give public statements, regulation of religious organisations public events, regulation of restricted urban areas where freedom of assembly is limited, the content-based restrictions in respect of LGBT-speech.
Is The Constitutional And Legal Recognition Of Traditional Community Laws Within The Multicultural Country Of Indonesia A Genuine Or Pseudo Recognition? Nurjaya, I Nyoman
Constitutional Review Vol 1, No 2 (2015)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Original Source | Check in Google Scholar | Full PDF (184.857 KB) | DOI: 10.31078/consrev123

Abstract

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.
Seeking Transitiona Justice In Indonesia: Lessons From The Cases of Aceh, Papua And East Timor Manan, Munafrizal
Constitutional Review Vol 1, No 2 (2015)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Original Source | Check in Google Scholar | Full PDF (287.5 KB) | DOI: 10.31078/consrev124

Abstract

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.
The Influence Of The Constitutional Court Decision Against Combating Money Laundering In The Context Of Criminal Law Reform -, Somawijaya; Ramdan, Ajie
Constitutional Review Vol 1, No 2 (2015)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Original Source | Check in Google Scholar | Full PDF (185.488 KB) | DOI: 10.31078/consrev125

Abstract

According to Moeljatno, Criminal Law is a part of a country’s legal system that prohibits certain acts with the threat of sanction for those who break said laws, determines when and in what cases such punishments should be imposed upon those who commit said acts and determines precisely how punishments should be carried out in the event that a person is accused of such acts. This paper will analyse Constitutional Court Decision No. 77/PUU-XII/2014 and Decision No. 21/PUU-XII/2014 regarding Criminal Law reform. Looking to the theory of procedural criminal law, an indictment of cumulative charges of money laundering requires that the underlying predicate offences be proven. If, for example, the predicate offence is corruption, the corruption must be proven as multiple crimes have been committed by the same suspect, namely corruption leading to money laundering. the Decision of  the Pretrial Judge of  the Court    of South Jakarta, Sarpin Rizaldi, and Constitution Court Decision No. 21/PUU- XII/2014 on the review of Article 77 of Act No. 8 Year 1981 concerning the Law of Criminal Procedure broadened the range of pretrial objects and greatly affected the principles of  formal criminal law.
The First Ten Years Of The Constitutional Court Of Indonesia: The Establishment Of The Principle Of Equality And The Prohibition Of Discrimination Eddyono, Luthfi Widagdo
Constitutional Review Vol 1, No 2 (2015)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Original Source | Check in Google Scholar | Full PDF (254.52 KB) | DOI: 10.31078/consrev126

Abstract

As a very fundamental principle of the 1945 Constitution, principle of equality and prohibition of discrimination does not only serve as the basic norm, but most importantly it also have functions as the source of morality for the constitution, as well as for the practices of politics, socio-economics and law in Indonesia. This article will pick and analyses significant and landmark decisions that made by the Constitutional Court of Indonesia in its 10 years existence related to principle of equality and prohibition of discrimination to understand how the Court interpreted the constitution and which principle that usually used by the Court in its practices. The result is based on its 10 years of experiences, The Constitutional Court of Indonesia have gave tremendous contribution for the protection of human rights and the advancement of democracy and nomocracy in Indonesia, especially for the establishment of the principle of equality and  the prohibition of discrimination based on 1945 Constitution and the principle of proportionality.
Indonesia Constitutional Court Constitutional Interpretation Methodology (2003-2008) Siregar, Fritz Edwadr
Constitutional Review Vol 1, No 1 (2015)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Original Source | Check in Google Scholar | Full PDF (242.381 KB) | DOI: 10.31078/consrev111

Abstract

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.
Convergence or Borrowing: Standing in The Indonesian Constitutional Court Hendrianto, Stefanus
Constitutional Review Vol 1, No 1 (2015)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Original Source | Check in Google Scholar | Full PDF (213.099 KB) | DOI: 10.31078/consrev112

Abstract

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.
The Role of the Indonesian Constitutional Court for An Effective Economic, Social and Cultural Rights Adjudication Triyana, Heribertus Jaka
Constitutional Review Vol 1, No 1 (2015)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Original Source | Check in Google Scholar | Full PDF (304.242 KB) | DOI: 10.31078/consrev114

Abstract

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.
The Constitutional Court’s Role in Consolidating Democracy and Reforming Local Election Satriawan, Iwan; Mokhtar, Khairil Azmin
Constitutional Review Vol 1, No 1 (2015)
Publisher : The Constitutional Court of the Republic of Indonesia

Show Abstract | Original Source | Check in Google Scholar | Full PDF (234.1 KB) | DOI: 10.31078/consrev115

Abstract

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.