Constitutional Review最新文献

{"title":"Political Influence on the Constitutional Court in the Republic of Macedonia: Reflections through the Dissenting Opinions in the Period of 2012-2015","authors":"S. Stojadinovic","doi":"10.31078/CONSREV513","DOIUrl":"https://doi.org/10.31078/CONSREV513","url":null,"abstract":"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.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44277326","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":"The Return of Pancasila: Political and Legal Rhetoric Against Transnational Islamist Imposition","authors":"Yance Arizona","doi":"10.31078/CONSREV516","DOIUrl":"https://doi.org/10.31078/CONSREV516","url":null,"abstract":"The rise of transnational Islamist movements in Indonesia in the last two decades recurrences the old debate between Pancasila and Islamism. This kind of fundamental Islamic movements widespread with their conservative view and it has had detrimental effects on the Indonesian society’s social cohesion. President Joko Widodo seeks to revive Pancasila to confront this threat. This is not for the first time Pancasila is used by the Indonesian government to resolve the tension between Islamic values and nation-state principles. Both President Sukarno and Suharto also used Pancasila as a vehicle to discipline their political opponents. Adopting a non-essentialist approach to Pancasila, I argue that the return of Pancasila in recent years would be more complicated because of the narrative of Pancasila revivalism as an adversarial ideology is bounded by traditionalism and lack of progressive interpretation. Instead of locating Pancasila as the counterpart to Islamism, what is needed is re-interpretation of Pancasila as a unifying ideology.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49193131","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":"The Internationalization of Judicial Review in the Colombian High Courts","authors":"J. V. Rodríguez","doi":"10.31078/CONSREV511","DOIUrl":"https://doi.org/10.31078/CONSREV511","url":null,"abstract":"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.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48975448","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":"The Malaysian Federal Constitution: An Islamic or a Secular Constitution?","authors":"S. Rahman","doi":"10.31078/CONSREV515","DOIUrl":"https://doi.org/10.31078/CONSREV515","url":null,"abstract":"Constitutionalism dictates that the government must only act within the four walls of the constitution. While adherence to this fundamental doctrine is proven to be difficult, it becomes more complicated when the walls are unclear. For decades, Malaysians struggle to ascertain the actual legal value of religion, particularly Islam, in its Federal Constitution and the impact of religion to the Malaysian legal system. Some opined that secularism is a basic structure of the Malaysian Federal Constitution and in the name of constitutionalism, religious laws cannot be the basis for administration of public law and must be confined to personal law matters. On the other hand, some opined that Islam constitutes a salient feature of the Constitution and the position of Islam as the religion of the Federation implies Malaysia as an Islamic state. This paper analyses the conflicting views, via qualitative studies of constitutional provisions which have religious element in the light of their history, together with relevant case laws which interpreted them. The analysis is done with a view to determine whether the Malaysian Federal Constitution is a secular instrument creating a secular state or a religious document establishing a theocratic state. From such analysis, the author presents that the Malaysian Federal Constitution, albeit giving special preference to Islam, is a religion-neutral document which is receptive to both religious and secular laws. This is based on the fact that the Constitution upholds the validity of both secular and religious laws for as long as they are enacted according to procedural laws required by the Constitution.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42442213","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":"A Comparative Perspective on Constitutional Complaint: Discussing Models, Procedures, and Decisions","authors":"M. Chakim","doi":"10.31078/CONSREV514","DOIUrl":"https://doi.org/10.31078/CONSREV514","url":null,"abstract":"The constitutional complaint is one of the important constitutional court jurisdictions that can be described as a complaint or lawsuit filed by any person who deems his or her rights has been violating by act or omission of public authority. Currently, the constitutional court in many countries have adopted a constitutional complaint system in a variety of models. However, the first application of the constitutional complaint jurisdiction came from Europe. In Austria, the constitutional complaint is allowed against the administrative actions but not against the court decisions. While Germany and Spain have a similar model that is a complaint against an act of the public authority including court decisions. In Asia, it is imperative that the court in Asia actively participate in the Association of Asian Constitutional Courts and Equivalent Institutions (AACC). The AACC members have adopted a system of constitutional adjudication in a variety of models, and when it comes to jurisdictions, out of sixteen AACC members, there are four countries (Azerbaijan, South Korea, Thailand, and Turkey) have the constitutional complaint in their jurisdictions. In Azerbaijan, constitutional complaint is comparatively broad. Azerbaijan’s Constitutional Court can handle constitutional complaint against the normative legal act of the legislative and executive, an act of a municipality and the decisions of courts. In contrast, even though constitutional complaint in South Korea and Thailand can be against the exercise and non-exercise of state power, constitutional complaint cannot be filed against court decisions. In Turkey, the constitutional complaint mechanism is coupled with the regional system of human rights protection. The Turkish Constitutional Court handles complaints from individuals concerning violations of human rights and freedoms falling under the joint protection of the Turkish Constitution and the European Convention on Human Rights (ECHR). This paper argues that constitutional complaint represents the main part of the constitutional court, and through a comparative perspective among three countries in Europe and four AACC members are expected to provide lessons for the other AACC members that do not have a constitutional complaint mechanism, such as Indonesia.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45091245","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":"Indonesia’s Judicial Review Regime in Comparative Perspective","authors":"T. Roux","doi":"10.31078/CONSREV422","DOIUrl":"https://doi.org/10.31078/CONSREV422","url":null,"abstract":"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.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41634454","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":"Referencing International Human Rights Law In Indonesian Constitutional Adjudication","authors":"B. Bisariyadi","doi":"10.31078/CONSREV424","DOIUrl":"https://doi.org/10.31078/CONSREV424","url":null,"abstract":"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.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49611419","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":"Constitutional Retrogression in Indonesia Under President Joko Widodo's Government: What Can the Constitutional Court Do?","authors":"Abdurrachman Satrio","doi":"10.31078/CONSREV425","DOIUrl":"https://doi.org/10.31078/CONSREV425","url":null,"abstract":"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.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49504258","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":"Harmonization of Regulation Based on Pancasila Values Through the Constitutional Court of Indonesia","authors":"T. Sudrajat","doi":"10.31078/CONSREV426","DOIUrl":"https://doi.org/10.31078/CONSREV426","url":null,"abstract":"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.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41301860","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":"Korean Constitutional Court and Constitutionalism in Political Dynamics: Focusing on Presidential Impeachment","authors":"Jin Wook Kim","doi":"10.31078/consrev423","DOIUrl":"https://doi.org/10.31078/consrev423","url":null,"abstract":"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.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44608974","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}