Constitutional Review最新文献

The Role of The Indonesian Constitutional Court in Preventing Social Conflict in A Diverse Society 印度尼西亚宪法法院在多元化社会中预防社会冲突的作用

Constitutional Review Pub Date : 2023-12-31 DOI: 10.31078/consrev925

R. Ristawati, Radian Salman

{"title":"The Role of The Indonesian Constitutional Court in Preventing Social Conflict in A Diverse Society","authors":"R. Ristawati, Radian Salman","doi":"10.31078/consrev925","DOIUrl":"https://doi.org/10.31078/consrev925","url":null,"abstract":"In the diverse society of Indonesia, the Constitutional Court plays a vital role in maintaining social harmony and preventing social conflict. Although this contribution is largely indirect, the Court exerts significant influence through its decisions. Since its establishment in 2003, the Court has rendered over 1,000 decisions, many of which carry profound implications for Indonesian society. This article addresses how the Constitutional Court, through its decisions, has contributed to mitigating social conflicts and fostering equilibrium within the nation’s diversity. To analyze this main issue, a normative approach grounded in the nation’s laws and the Constitutional Court’s decisions will be employed. Several decisions, especially on judicial reviews and election disputes, will be examined to illustrate the Court’s role in minimizing social conflict. From a social theory perspective, the study of social conflict has relevance in the context of law and society, given the potential for various types of conflicts in Indonesia’s diverse society. The legal basis for addressing social conflicts in Indonesia is the 2007 Law on Social Conflict Management. According to this law, social conflicts may arise from various factors, including political issues, economic disparities, socio-cultural differences, inter-religious or inter-ethnic tensions, disputes over boundaries at the village, regency/municipal, or provincial levels, conflicts related to natural resources, and disparities in the distribution of these resources within society. The Constitutional Court indirectly plays a role in preventing social conflicts. Nevertheless, the Court faces challenges in fulfilling this role. Pressures from various parties and interests may hinder its ability to ensure constitutional justice, potentially compromising its principles of independence and impartiality in fulfilling its mandate.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":"25 10","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139129885","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Need for A Constitutional Complaint Mechanism for Tax Matters in Indonesia 印度尼西亚税收事务宪法申诉机制的必要性

Constitutional Review Pub Date : 2023-12-31 DOI: 10.31078/consrev926

A. Nugroho, Mahaarum Kusuma Pertiwi, Praditya Janu Wisaksono

{"title":"The Need for A Constitutional Complaint Mechanism for Tax Matters in Indonesia","authors":"A. Nugroho, Mahaarum Kusuma Pertiwi, Praditya Janu Wisaksono","doi":"10.31078/consrev926","DOIUrl":"https://doi.org/10.31078/consrev926","url":null,"abstract":"Currently, there is no available mechanism for directly protecting taxpayers’ constitutional rights from potential violations resulting from tax regulations and policies in Indonesia. The Constitutional Court’s authority for constitutional review, the Supreme Court’s authority for judicial review, and the administrative appeal process before the State Administrative Court all fail to provide sufficient protection for taxpayers’ constitutional rights. This article proposes the introduction of a constitutional complaint mechanism for tax matters in Indonesia, as a mechanism to directly protect these rights. The constitutional complaint process ensures direct conformity between the reviewed regulation or policy and the Constitution, with an emphasis on the application of a proportionality test. This test serves as a valuable tool for assessing the balance between taxpayers’ constitutional rights and the government’s duty to collect taxes. Striking this balance is essential for advancing the exercise of political accountability in taxation. This study employs a normative-empirical methodology, combining case law studies and theoretical perspectives to conceptualize the use of constitutional complaint against tax regulations and policies in Indonesia. The main finding of this research shows that the current constitutional review mechanisms put taxpayers at a disadvantage. Therefore, the authors conclude that the establishment of a constitutional complaint process will improve the protection of taxpayers’ rights.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":"5 8","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139132760","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Ministerial Authority in Formulating Regulations Related to Presidential Lawmaking Doctrine 制定与总统立法原则有关的条例的部长权力

Constitutional Review Pub Date : 2023-12-31 DOI: 10.31078/consrev924

Charles Simabura, Satya Arinanto, Maria Farida Indrati, Saldi Isra, Fitra Arsil

{"title":"Ministerial Authority in Formulating Regulations Related to Presidential Lawmaking Doctrine","authors":"Charles Simabura, Satya Arinanto, Maria Farida Indrati, Saldi Isra, Fitra Arsil","doi":"10.31078/consrev924","DOIUrl":"https://doi.org/10.31078/consrev924","url":null,"abstract":"As ministerial regulations increasingly play a larger role in government administration, they have become one of the main forms of legislation. This has resulted in a significant increase in the quantity of ministerial regulations, including those formed under the mandate of higher regulations, and those formed under the authority of ministers. According to the doctrine of making presidential laws, the president has a constitutional mandate to form implementing regulations for laws (delegated legislation). This normative research examines the basis for the formation of ministerial regulations in a presidential system. It analyzes quantitative data by using samples from ministerial regulations issued between 2005 and 2020 by 12 ministries. The analysis reveals that 65% of ministerial regulations come from ministerial authority (attribution), while 35% stem from higher regulatory directives. This has resulted in a proliferation of ministerial regulations in Indonesia. In the presidential system, the president holds the authority to formulate implementing regulations, with ministers acting as presidential aides and not lawmaking agents. Nevertheless, the unchecked formation of ministerial regulations on the basis of authority has contributed to a power imbalance, wherein ministerial regulations have gained ascendancy at the expense of presidential legislation products. This divergence from the Indonesian Constitution’s Article 4, Paragraph (1), and Article 5, Paragraph (2) dilutes the role of presidential legislation products as implementing regulations. It deviates from the established tenets of the presidential system in Indonesia, wherein the president is designated as the law executor rather than the minister.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":"102 32","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139134945","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Turkish Constitutional Court During the State of Emergency Between 2016 and 2018 2016 年至 2018 年紧急状态期间的土耳其宪法法院

Constitutional Review Pub Date : 2023-12-31 DOI: 10.31078/consrev921

Engin Yıldırım

引用次数: 0

Court-Packing Accomplished – The Changing Jurisprudence of a Subordinate Constitutional Court 法院组合大功告成--下级宪法法院判例的变化

Constitutional Review Pub Date : 2023-12-31 DOI: 10.31078/consrev923

Zoltán Szente

引用次数: 0

Constitutional Court Decisions on the Judicial Independence of Other Indonesian Courts 宪法法院关于印度尼西亚其他法院司法独立的裁决

Constitutional Review Pub Date : 2023-12-31 DOI: 10.31078/consrev922

Simon Butt

引用次数: 0

Judicial Control of Parliamentary Procedure: Theoretical Framework Analyses 议会程序的司法控制:理论框架分析

Constitutional Review Pub Date : 2023-05-31 DOI: 10.31078/consrev911

Z. Szabó

引用次数: 0

Rethinking Amnesties and the Function of the Domestic Judge 对特赦与国内法官职能的再思考

Constitutional Review Pub Date : 2023-05-31 DOI: 10.31078/consrev915

M. Vagias

{"title":"Rethinking Amnesties and the Function of the Domestic Judge","authors":"M. Vagias","doi":"10.31078/consrev915","DOIUrl":"https://doi.org/10.31078/consrev915","url":null,"abstract":"The award of amnesties or pardons has been used time and again to facilitate the attainment of peace after a civil war. However, this practice has been condemned by human rights and other international bodies as incompatible with the duty of states under human rights law to investigate, prosecute and punish human rights violations and the victims’ rights of access to justice and to the truth. Due to this incompatibility, the function of the domestic (constitutional) judge is none other than to strike down amnesty legislation as null and void. This appears to be the prevailing narrative in contemporary human rights discourse. The present contribution takes issue with this narrative. It takes the position that the international effect of regional human rights jurisprudencehas been to condition, as opposed to wholesale outlaw, the use of amnesties as a post-conflict peace-building tool. It defends the view that while blanket amnesties are increasingly considered incompatible with victims’ rights today, that does not mean that all amnesties are prohibited. From this perspective, this article argues that the proper function of domestic constitutional courts in the performance of the constitutionality control of amnesty legislation should take a different shape; instead of querying whether to strike down or to uphold amnesty legislation in its entirety, Constitutional Courts should condition amnesties to criteria – such as their position as part of a broader transitional justice package including truth telling and compensation – and monitor their implementation on a case-by-case basis.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43271837","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Democracy, Procedural and Social Rights, and Constitutional Courts in Hungary and Slovakia 匈牙利和斯洛伐克的民主、程序和社会权利以及宪法法院

Constitutional Review Pub Date : 2023-05-31 DOI: 10.31078/consrev912

M. Steuer

{"title":"Democracy, Procedural and Social Rights, and Constitutional Courts in Hungary and Slovakia","authors":"M. Steuer","doi":"10.31078/consrev912","DOIUrl":"https://doi.org/10.31078/consrev912","url":null,"abstract":"In democracies, individuals are free to develop their own conceptions of values, and try to persuade others of their viability. However, some of these conceptions carry greater weight than others. In particular, centralized constitutional courts (CCs) authoritatively interpret fundamental values as they are typically entrusted by constitutions to do so. This article introduces a new approach to examine how CCs advance particular value conceptions, via scrutinizing the understandings of procedural rights and social rights by the two formally most powerful in Central Europe: the Hungarian (HCC) and the Slovak (SCC) Constitutional Court. While procedural rights capture the minimum standards of equal treatment, social rights signal more robust readings of democracy which raise expectations of improved well-being. The two jurisdictions offer windows into the working of CCs operating in regimes with a history of authoritarianism—whereas Slovakia is currently a fragile democracy at best, Hungary has regressed into an illiberal regime. The article makes use of new institutionalism, where ideas articulated in the CCs’ case law have a potential to influence the political regimes the CCs are located in. Using a case selection method based on keyword search, its two case studies, covering the period between the 1990s and 2017 and 77 majority opinions show how the SCC seldomly connected procedural and substantive rights to democracy, but this went unnoticed in the broader public. For the HCC, however, the absence of the connections between democracy and justice, especially when interpreting social rights, appears to have contributed to its image as distant from the public, locked in abstract legal discourses. The findings prompt questions about the impact of public perceptions of the CCs on the capacity of actors with authoritarian ambitions to launch successful assaults on the CCs, as well as on the potential of the CCs to prevent these assaults by articulating particular value conceptions.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47650325","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Breathing Life into the Constitution: the Transformative Role of Courts to Give a Unique Identity to a Constitution 为宪法注入生命:法院赋予宪法独特身份的变革作用

Constitutional Review Pub Date : 2023-05-31 DOI: 10.31078/consrev914

B. de Villiers

{"title":"Breathing Life into the Constitution: the Transformative Role of Courts to Give a Unique Identity to a Constitution","authors":"B. de Villiers","doi":"10.31078/consrev914","DOIUrl":"https://doi.org/10.31078/consrev914","url":null,"abstract":"This paper reflects on the transformative role of courts to direct and change the pathway of the countries in which they serve. The paper commences with a brief discussion of what is meant by transformative constitutionalism. It takes issue with the proposition that newly created courts under post 1990-constitutions are more prone to constitutional transformation than courts under older constitutions. It shows how there have been examples where courts have transformed their societies throughout the history of courts. It also points out that courts must, regardless of their transformative role, demonstrate respect for the separation of powers since all organs of government must work together to effectively transform society. The paper then focuses on 4 case studies where courts have radically transformed their society, namely Germany through the use of Bundestreue to give content to the federal system; India where Directive Principles of state policy are used to give content to human rights; Australia where the Aboriginal native title had been recognised after 200 years of denial; and South Africa where Ubuntu is used as a life-giving word to effect social justice. The proposition put is that the transformative ability of a constitution and the judiciary serving under that constitution is not determined by the age of the constitution, but by the ability of its justices to determine disputes on the facts, in accordance with the law, and in reflection of the realities of the society in which they reside. The fault lines of society often rapture in litigation, and that is when and where judges may direct a nation into a new direction.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46068853","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0