Constitutional Review最新文献

{"title":"Constitutional Court and The Past Conflicts in Post- Authoritarian Indonesia","authors":"Bayu Dwi Anggono, Rian Adhivira Prabowo, Yussele Nando Mardika","doi":"10.31078/consrev913","DOIUrl":"https://doi.org/10.31078/consrev913","url":null,"abstract":"The fall of the New Order authoritarian regime in Indonesia was marked by the changing landscape of conflict resolution. In a more democratic setting, “Reformasi” regime has installed democratic institutions including the formation of the Constitutional Court. While the newly established court was celebrated as relatively successful in terms of defending human rights, its role in resolving the abused past is questionable. The new Reformasi regime inherits wounds and scars from the abuse committed by the previous iron fist regime. This paper aims to analyze the Constitutional Court’s roles as a conflict-resolution body in dealing with the past gross violation of human rights in the light of Indonesian transitional justice. In that regards, this paper assesses the Court’s decisions and how far it could answer the victims’ call for justice. This paper found that regardless of the Court’s intentions, the court’s decisions still require further executive or legislative policies. The nature of the court doesn’t bring instant enjoyment for the “winning” party to be benefited from the decisions. In short, the importance for the victims of past abuse of power as stated in the Court’s decisions still has not been translated into justice. At the same time, this also indicates how far the Court is able to resolve this kind of social conflict: “justice delayed, justice denied.” In a more Galtungian’s perspectives, there is a gap between meta-conflict to be deployed into original-conflict. This paper suggests that to overcome such issues, a bridge to reconnect the two should be built. In this context, the changing regime from New Order to Reformasi should be coupled with a holistic approach of transitional justice tools and mechanisms. More importantly, to urge the delivery of justice for those who suffered.","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":"49483710","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}

{"title":"Strengths and Limitations of The Indonesian Constitutional Court’s “6 Basic Principles” in Resolving Water Conflicts","authors":"Mohamad Mova Alafghani","doi":"10.31078/consrev916","DOIUrl":"https://doi.org/10.31078/consrev916","url":null,"abstract":"Many parts of Indonesia are already experiencing water stress and the condition is expected to become worse by 2045, when, according to the World Bank, 67% of Indonesia’s GDP will be produced in areas with high water stress. Conflict over water resources has been reported between water users and uses, such as between agriculture and drinking water, between agricultureand fisheries, and between farmers and industries. In 2015, responding to the petition to curtail private sector control over water resources, the Constitutional Court invalidated Water Law 7/2004 and introduced the 6 basic principles, that have been used as normative guidance for implementing the regulation on water resources and for resolving future water conflicts. However, the principles are ambiguous in many ways. This paper will critically examine the principles and then outline the difficulties in its implementation. The methodology employed is normative-analytical; incorporating analytical frameworks from water law and governance into constitutional adjudication. First the paper clarifies some conceptual frameworks related to water conflict and how the principles have been interpreted by regulators. The paper then explains the general categories of water conflict and where those principles would, or would not, fit. The paper then continues with a critique of the principles, in terms of their (i) unclearscope, (ii) conflation between users and uses, (iii) neglect of footprint and (iv) the implications for water reallocation. This paper finds that one of the strengths of the principles is that they provides a basic normative guidance for solving conflict in water allocation, the protection of human rights and the environment. However, these benefits come with some limitations: neglect of efficiency over perceived equity and potential restriction of reallocation of water among different users. The principles are also difficult to implement where there is conflict over water quality or spatial development. As such, the paper recommends that the Constitutional Courts revise and expand the principles in future cases using teleological approach and that in terms of implementation, the 6 basic principles should also be interpreted teleologically.","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":"43669252","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}

{"title":"Conflict Resolution in Human Rights Cases: The Role of the Supreme Court of Canada","authors":"M. Cohen, Sarah-Michèle Vincent-Wright","doi":"10.31078/consrev824","DOIUrl":"https://doi.org/10.31078/consrev824","url":null,"abstract":"This paper examines the role of the Supreme Court of Canada (SCC) in resolving human rights conflicts and balancing individual and collective rights. With a multiple control mission, the Court must interpret the Constitution and resolve disputes over competing rights and interests, based on the principle of constitutional democracy. This paper specifically focuses on the SCC’s role in conflict resolution in human rights cases, especially in the complex legal framework of protection existing in Canada. It also addresses how the Court’s rulings may affect the protection of fundamental rights under the Canadian Charter, illustrated by some key examples from the Court’s caselaw. To this end, the first part provides a descriptive overview of the complex fabric of human rights protection in the Canadian constitutional framework. The second part discusses the SCC’s role in protecting human rights within the Canadian legal system. Ultimately, this paper underscores the fundamental role of a Supreme Court in protecting human rights in situations of multiple rights conflicts. ","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45797346","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}

{"title":"Freedom of Expression and Hate Speech: When Values Collide in Divided Societies","authors":"B. D. Villiers","doi":"10.31078/consrev821","DOIUrl":"https://doi.org/10.31078/consrev821","url":null,"abstract":"One of the thorniest issues in law, especially concerning the boundaries of what is reasonable and proportionate, is the distinction between freedom of expression and hate speech. Striking a balance between freedom of expression and hate speech is, however, not a mere exercise in theory; it goes to the core of respect of individual rights and freedoms. To one person, uttering speech pursuant to the right to free expression is essential for a free and open democratic society; whereas another person, offended by what they perceive as hatred, can experience such speech as an attack on their identity and self-worth, causing harm, fear and anxiety that deny their individual rights to equality, identity and dignity. This paper gives a brief overview of jurisprudential developments in international law concerning speech that may fall within the category of hate speech, whereafter two prominent South African judgments by the Equality Court are discussed. Those two judgments highlight the complexities in determining when speech can be regarded as hate speech; what test is applied to ascertain whether speech constitutes hate speech; what evidence is required for a finding to be made; and the effect of a declaratory order. The two judgments discussed, the Nelson Mandela Trust and Ors v. AfriForum and Ors (Old Flag case 2019) and the AfriForum and Economic Freedom Fighters and Ors (Kill the Boer Case 2022), attempted to determine the line that separates freedom of expression from hate speech. The judgments, perhaps not unexpectedly, have given rise to more questions than answers. The inconsistency in comparative jurisprudence reaffirms that the labelling of speech as hate speech should be reserved for the most extreme forms of speech; it should be proportionate to the speech, including who expressed it, where and when; and any declaration should only be directed at the specific incident and not restrict speech in general.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45940240","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}

{"title":"Conscientious Objection Before the Indonesian Constitutional Court","authors":"H. Triyana","doi":"10.31078/consrev825","DOIUrl":"https://doi.org/10.31078/consrev825","url":null,"abstract":"The issuance of Indonesia’s Law No. 23 of 2019 on the Management of National Resources for State Defense (PSDN Law) sparked a national debate on conscription and conscientious objection. Consequently, a coalition of civic society organizations submitted the PSDN Law before the Constitutional Court for judicial review. They argued that the PSDN Law violates the Indonesian Constitution’s Article 28 on human rights protection. One of the legal submissions is based on the argument that the PSDN Law deliberately ignores human rights in order to provide reserve and backup components to the military. This argument is supported by Article 18 of the International Covenant on Civil and Political Rights (ICCPR) and the ICCPR’s General Comment No. 22 of 1993 paragraph 11, justifying conscientious objection as an inherent human right. The analysis in this paper is mainly uses the legal positivism paradigm and the human rights-based approach. This paradigm provides a framework for analyzing how the PSDN Law generates a distinctive legal feature for Indonesia’s legal system. In line with Article 28 of the Indonesian Constitution, the Constitutional Court should explicitly assess the preservation of civil rights. It may be claimed that conceivable legal gaps (norm versus reality) and legal loopholes add to the Constitutional Court’s obligation to consider the omission of conscientious objection recognition. This article argues the Constitutional Court should adjudicate on the issue of citizens being conscripted as reserve and backup components in situations of military threats, hybrid threats and/or non-military threats. This research further maintains that the Constitutional Court should recognize the existence of conscientious objection as an inherent human right, as a form of judicial activism. In accordance with the doctrine of judicial activism, the Court could resolve and offer solutions to the existence of conscientious objection as a democratic civil right. The Court should also determine the area, scope, application and orientation of conscientious objection as a distinct feature of human rights based on Indonesia’s context and perspective on defense required by international human rights treaties, conventions, or general comments on such instruments.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48510469","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}

{"title":"Exporting a Constitutional Court to Brunei? Benefits and Prospects","authors":"Ann N. Black","doi":"10.31078/consrev826","DOIUrl":"https://doi.org/10.31078/consrev826","url":null,"abstract":"Negara Brunei Darussalam (Brunei) is Asia’s only, and one of the world’s few remaining, absolute monarchies. Brunei’s much-venerated Sultan and Yang Di Pertuan Agong is accountable to only Allah as his “shadow on earth”. Within the Sultanate he is head of religion, Prime Minister, and as Sultan he appoints all members to the nation’s six advisory Councils. He is above the law and is the country’s legislator. He can amend the constitution and bypass the Legislative Council without court oversight. Judicial review was formally abolished in 2004. The accrual of power – judicial, religious, legislative, and executive – in the hands of one man is only possible by the continued renewal of a state of emergency. Since 1962, the state of emergency has been renewed every two years and once Brunei is in a state of emergency, all powers devolve to its Sultan. There is an absence of any effective checks and balances mechanism such as a democratically elected Legislative Council, a free and open media, a judiciary with powers of constitutional review, an accountable executive government, or an engaged civil society. Because the constitutionality of sixty years of emergency rule in Brunei has never been judicially determined, this paper argues it would be the first task for an independent Constitutional Court. The need for such determination on the legitimacy of Brunei’s biennial emergency proclamations is set out and a case made as to why a Constitutional Court could be the circuit breaker for a return democratic participation, rule of law, and fundamental human rights in the Sultanate. There is reflection on the obstacles to any reform which make the prospects for this unlikely in the lifetime of the current Sultan.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42557988","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}

{"title":"Influencing or Intervention? Impact of Constitutional Court Decisions on the Supreme Court in Indonesia","authors":"Dian Agung Wicaksono, Faiz Rahman","doi":"10.31078/consrev823","DOIUrl":"https://doi.org/10.31078/consrev823","url":null,"abstract":"The third amendment of Indonesia’s 1945 Constitution, conducted in 2001, had significant implications for the nation’s judiciary. It transformed the judiciary from a single to a dual structure. Consequently, there are two apexes of the judiciary: the Supreme Court and the Constitutional Court. Furthermore, the establishment of the Constitutional Court divided judicial review authority between the two apex courts. The Constitutional Court can review laws against the Constitution, while the Supreme Court has the power to review whether regulations, made under laws, contradict such laws. Although the Indonesian Constitution provides explicit delineations over the absolute competence of judicial review, the division of judicial review has often triggered tension between the two courts. The Constitution allows the Supreme Court to have additional authorities granted by laws. On the other hand, the Constitutional Court has the power to review any law against the Constitution, including laws related to the Supreme Court. This article seeks to answer the important question of whether the Constitutional Court could influence or intervene in the Supreme Court through judicial review. The authors argue that the duality of judicial review authority unintentionally causes an imbalance in the functional relationship between the two apexes of the judiciary. The main reason is that the Constitutional Court can influence or intervene in the Supreme Court through constitutional review authority. The authors examine two essential aspects of this: (1) the functional implications of duality of judicial review authority; and (2) the implementation of the Constitutional Court’s authority in reviewing laws, especially those closely related to the Supreme Court’s authorities. Various cases are examined to illustrate how the Constitutional Court could directly or indirectly influence the Supreme Courts’ authorities. The Constitutional Court, however, often seems to ‘play safe’ to maintain the judiciary’s imbalanced relationship caused by the dualism of judicial review authority.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47868038","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}

{"title":"Creating Rights, Terminating Rights, Overcoming Legal Conflicts","authors":"R. Partain","doi":"10.31078/consrev822","DOIUrl":"https://doi.org/10.31078/consrev822","url":null,"abstract":"At the heart of this paper are judges and their obligations to ensure that conflicts over fragmented rights are cured, that fundamental rights are stewarded, and that justice prevails. There are several respected legal theories that have never been examined together before, but when three of them are placed in a nexus of constitutional law, we find that these ideas support broad powers for courts to control the distribution and allocation of rights, enabling the resolution of conflicts at many social levels. First, a succession of scholars has identified the risks of ‘fragmenting rights’, of allocating overlapping rights to too many parties. The danger presented is that those rights-holders may lose the use of their legal rights or privileges; this outcome is known as the ‘Tragedy of the Anticommons’. Too many rights held by too many parties, a ‘fragmentation of rights’, can lead to a lack of access to rights and a lack of access to justice. Second, the legal theories of Nobel Laureate Ronald Coase, who found that initial allocations of rights across a community might have been allocated in a manner that frustrates negotiations and other means to avoid conflicts; but judges have an opportunity and an obligation to reset those allocations of rights to better enable society toflourish. Third, Yale constitutional scholar Robert Cover wrote that judges can and should terminate claims of overlapping rights so that the litigious parties, and society at large, can return to a more harmonious co-existence. Cover wrote that this methodology of ‘jurispathic’ judges was both an ethical and a robust means of solving Dworkin’s ‘hard cases’. This paper investigates the nexus of these three jurisprudences and what the impact of their nexus is for constitutional scholars. This paper delivers original theoretical legal findings and provides functional approaches to best enable the resolution of conflicts before courts and the maintenance of rights and privileges for all parties. This paper documents an argument that courts, especially constitutional courts, have more power to solve social conflicts and other conflicts arising from legal rules and culturesthan many constitutional law scholars may have previously assumed feasible.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49408740","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}

{"title":"Fake News and Internet Shutdowns in Indonesia: Symptoms of Failure to Uphold Democracy","authors":"Rofi Aulia Rahman, Shu-Mei Tang","doi":"10.31078/consrev816","DOIUrl":"https://doi.org/10.31078/consrev816","url":null,"abstract":"The Indonesian government limited or shut down internet access during separate riots in Jakarta and Papua in 2019. The justification for blocking the internet and disabling certain features of social media platforms was to quell the unrest by ceasing the spread of fake news. Nevertheless, the government did not declare a state of emergency in response to either situation, triggering debate on whether the internet restrictions had any strong constitutional basis or if they were out of proportion and unconstitutional. This study evaluates the government’s policy on internet shutdowns to reduce the spread of fake news amid riots, and explicates when the state of emergency “feature” might be activated. The research method of this article is a doctrinal legal approach, which critically examines whether the government policy was excessive, and to what extent a state of emergency can be implemented by minimum standard requirements. The result of this study shows the riots in Jakarta and Papua ought not be categorized as national threats; hence, the internet shutdown was out of proportion. Fake news is part of the price we pay for a free society; thus the article argues that an internet shutdown is not a proper way to combat fakenews. Furthermore, the government has failed to fulfill the minimum standards to justify the internet shutdowns. Access to the internet is a new face of democratic pillars, so blocking internet access without any sufficient legal instruments and correct constitutional interpretation might indicate symptoms of a failure to uphold democracy. ","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45082250","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}

{"title":"Unmasking the Devil: The Role of the Civil Court and Islamic Religious Authorities in the Battle Against Religious Extremism and Terrorism in Malaysia","authors":"K. Mokhtar","doi":"10.31078/consrev814","DOIUrl":"https://doi.org/10.31078/consrev814","url":null,"abstract":"This paper sets out to examine the role of the court and the Islamic religious authorities in fighting religious extremism and terrorism in Malaysia. The judiciary has obligations to protect the people, to guarantee freedom and to dispense justice. It is the constitutional duty of the Islamic religious authorities to preserve the religion, to safeguard the Muslim and to insulate the teachings of Islam in Malaysia. Under the federal constitutional framework of the country, civil court and federal government do not deal with religious matters because it comes under the jurisdiction of Syariah laws and Syariah court of the states. However, in order to combat religious extremism and terrorism under the pretext of Islam, the demarcation of constitutional power and jurisdiction between federal and state governments is obscured. The federal government which has exclusive legislative and executive powers over criminal matters, public order and security have to collaborate with the Islamic religious authorities of the states in encountering threats coming from religious extremists and terrorists’ groups. Although laws, policies, and agencies relating to internal security, public order and crime are under the jurisdiction of the federal government, the ideological, theological, and philosophical dimensions of religious extremism and terrorism have to be dealt with by the Islamic religious authorities of the states. The civil court on a few occasions faced with challenging tasks of upholding rights of those accused of religious terrorism while at the same time preserving public order, peace, and security of the country. This is a qualitative research which involves legal study and analysis of primary materials including constitutions, legislations, emergency ordinances and court cases, and secondary materials such as books, articles and expert opinions. The symbiosis of federal authorities especially the civil courts, with the Islamic religious authorities of the states is the focal point of this paper. To counter the terrorists’ threats and combat the spreading of the dangerous extremists’ ideologies the court and the Islamic religious authorities need to have mutual understanding and establish cooperation in achieving the common goal. Only then the fight against religious extremism and terrorism in Malaysia is sustainable and effective.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49260487","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}