Constitutional Review最新文献_第6页

Megapolitical Cases before the Constitutional Court of Indonesia since 2004: An Empirical Study 2004年以来印尼宪法法院审理的重大政治案件：实证研究

Constitutional Review Pub Date : 2018-12-31 DOI: 10.31078/CONSREV421

Björn Dressel, Tomoo Inoue

{"title":"Megapolitical Cases before the Constitutional Court of Indonesia since 2004: An Empirical Study","authors":"Björn Dressel, Tomoo Inoue","doi":"10.31078/CONSREV421","DOIUrl":"https://doi.org/10.31078/CONSREV421","url":null,"abstract":"The Constitutional Court of Indonesia is considered one of Asia’s most activist courts. Here we investigate empirically possible determinants of the decisions of its judges over the period 2003–18. The findings are based on a unique data set of 80 high-profile political cases, complemented by data on the socio-biographic profiles of 26 judges who served during that period. Testing for common perceptions of the Constitutional Court since its inception, we first describe patterns in judicial decision-making across time and court composition before testing specifically for the impact of the judges’ professional backgrounds, presidential administrations, the influence of the Chief Justice, and cohort behaviour. The analysis finds declining dissent among justices on the bench over time and also provides evidence of strategic behaviour of justices at the ending of their own terms. But there is little statistical evidence that judicial behaviour has been affected by work background (except for those coming from the executive branch), appointment track or generation – hence suggesting that justices seem to retain more independence than the public seems to perceive. We then discuss the results in the context of Indonesia’s evolving constitutional democracy and look at the implications for comparative studies of judicial behaviour.","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":"46596474","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: 3

A Commentary: the Inadmissibility of Non-Indonesian Citizens in Judicial Review before the Indonesian Constitutional Court 评注:非印尼公民在印尼宪法法院司法审查中的不可受理性

Constitutional Review Pub Date : 2018-08-21 DOI: 10.31078/CONSREV324

Bayu Mahendra

{"title":"A Commentary: the Inadmissibility of Non-Indonesian Citizens in Judicial Review before the Indonesian Constitutional Court","authors":"Bayu Mahendra","doi":"10.31078/CONSREV324","DOIUrl":"https://doi.org/10.31078/CONSREV324","url":null,"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.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44402482","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

Relation between the Constitutional Court of the Republic of Indonesia and the Legislators according to the 1945 Constitution of the Republic of Indonesia 根据1945年《印度尼西亚共和国宪法》，印度尼西亚共和国宪法法院与立法者之间的关系

Constitutional Review Pub Date : 2018-08-21 DOI: 10.31078/CONSREV321

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

{"title":"Relation between the Constitutional Court of the Republic of Indonesia and the Legislators according to the 1945 Constitution of the Republic of Indonesia","authors":"Fajar Laksono, S. Sudarsono, Arief Hidayat, Muchammad Ali Safaat","doi":"10.31078/CONSREV321","DOIUrl":"https://doi.org/10.31078/CONSREV321","url":null,"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.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47680141","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: 2

Laws of Ratification of an International Treaty in Indonesian Laws Hierarchy 印度尼西亚法律体系中国际条约的批准法

Constitutional Review Pub Date : 2018-08-21 DOI: 10.31078/CONSREV322

Noor Sidharta

{"title":"Laws of Ratification of an International Treaty in Indonesian Laws Hierarchy","authors":"Noor Sidharta","doi":"10.31078/CONSREV322","DOIUrl":"https://doi.org/10.31078/CONSREV322","url":null,"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.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46340990","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: 3

The Indonesian Constitutional Court and the Democratic Institutions in Judicial Review 印度尼西亚宪法法院与司法审查中的民主机构

Constitutional Review Pub Date : 2018-08-21 DOI: 10.31078/CONSREV323

Andy Omara

引用次数: 5

An Analysis of Subjectum Litis and Objectum Litis on Dispute about the Authority of State Institution from the Verdicts of the Constitutional Court 从宪法法院判决看国家机构权威之争的主客体诉讼

Constitutional Review Pub Date : 2018-08-21 DOI: 10.31078/consrev325

Anna Triningsih, Nuzul Qur'aini Mardiya

{"title":"An Analysis of Subjectum Litis and Objectum Litis on Dispute about the Authority of State Institution from the Verdicts of the Constitutional Court","authors":"Anna Triningsih, Nuzul Qur'aini Mardiya","doi":"10.31078/consrev325","DOIUrl":"https://doi.org/10.31078/consrev325","url":null,"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.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45370729","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: 1

The Function of Judicial Dissent in Indonesia’s Constitutional Court 印尼宪法法院司法异议的功能

Constitutional Review Pub Date : 2018-05-31 DOI: 10.31078/consrev411

S. Butt

引用次数: 8

Proportionality Test in the 1945 Constitution: Limiting Hizbut Tahrir Freedom of Assembly 1945年宪法中的比例检验：限制伊斯兰解放党的集会自由

Constitutional Review Pub Date : 2018-05-31 DOI: 10.31078/CONSREV413

G. A. Taufik

{"title":"Proportionality Test in the 1945 Constitution: Limiting Hizbut Tahrir Freedom of Assembly","authors":"G. A. Taufik","doi":"10.31078/CONSREV413","DOIUrl":"https://doi.org/10.31078/CONSREV413","url":null,"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.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43305220","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: 6

Revisiting Liberal Democracy and Asian Values in Contemporary Indonesia 重新审视当代印尼的自由民主与亚洲价值观

Constitutional Review Pub Date : 2018-05-31 DOI: 10.31078/consrev415

Muhammad Bahrul Ulum, Nilna Aliyan Hamida

{"title":"Revisiting Liberal Democracy and Asian Values in Contemporary Indonesia","authors":"Muhammad Bahrul Ulum, Nilna Aliyan Hamida","doi":"10.31078/consrev415","DOIUrl":"https://doi.org/10.31078/consrev415","url":null,"abstract":"This paper aims to examine the complex and often contentious relationship between constitutionalism and integralism in the Indonesian government and provides a criticism of democratization within the contemporary state. Integralist state portrays the relationship between the state and the people as analogous to a family, with the state as a father and the people as children (the Family Principle). Those that adhere to this view, with regard to contemporary Asian politics, claim that Asian values are inherently integralist, that Asia’s particular history and values different considerably from the West’s, and that Pancasila, Indonesia’s state philosophy, is utilized to establish romanticized relations between the ruler and the ruled. The data presented in this paper was collected from relevant articles on Indonesian democracy and Asian values. It also demonstrates how Pancasila, as Indonesia’s core guiding philosophy, has influenced debates over how the constitutional should be applied and interpreted. As the research shows, during the regimes of Sukarno and Suharto, Pancasila was manipulated in order to promote the goals of the state, and that a reliance on integralism during Indonesia’s founding years severely diminished human rights and Indonesia’s capacity for an efficient democracy. By continually putting the priorities of the state above those of the people, the Indonesian government has contradicted its adoption of human rights and liberal democracy is often challenged by the spirit of integralism.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44868301","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: 8

Mainstreaming Human Rights in the Asian Judiciary 将人权纳入亚洲司法机构的主流

Constitutional Review Pub Date : 2018-05-31 DOI: 10.31078/CONSREV414

Desi Hanara

{"title":"Mainstreaming Human Rights in the Asian Judiciary","authors":"Desi Hanara","doi":"10.31078/CONSREV414","DOIUrl":"https://doi.org/10.31078/CONSREV414","url":null,"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.","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42437380","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: 3