Constitutional Review最新文献

筛选

英文中文

Filling the Hole in Indonesia’s Constitutional System: Constitutional Courts and the Review of Regulations in a Split Jurisdiction 填补印尼宪法体系的漏洞：宪法法院和对分裂管辖区法规的审查

Constitutional Review Pub Date : 2018-05-31 DOI: 10.31078/CONSREV412

T. Lindsey

{"title":"Filling the Hole in Indonesia’s Constitutional System: Constitutional Courts and the Review of Regulations in a Split Jurisdiction","authors":"T. Lindsey","doi":"10.31078/CONSREV412","DOIUrl":"https://doi.org/10.31078/CONSREV412","url":null,"abstract":"The Indonesian constitutional system contains a serious flaw that means that the constitutionality of a large number of laws cannot be determined by any court. Although the jurisdiction for the judicial review of laws is split between the Constitutional Court and the Supreme Court, neither can review the constitutionality of subordinate regulations. This is problematic because in Indonesia the real substance of statutes is often found in implementing regulations, of which there are very many. This paper argues that that is open to the Constitutional Court to reconsider its position on review of regulations in order to remedy this problem. It could do so by interpreting its power of judicial review of statutes to extend to laws below the level of statutes. The paper begins with a brief account of how Indonesia came to have a system of judicial constitutional review that is restricted to statutes. It then examines the experience of South Korea’s Constitutional Court, a court in an Asian civil law country with a split jurisdiction for judicial review of laws like Indonesia’s. Despite controversy, this court has been able to interpret its powers to constitutionally invalidate statutes in such a way as to extend them to subordinate regulations as well. This paper argues that Indonesia’s Constitutional Court should follow South Korea’s example, in order to prevent the possibility of constitutionalism being subverted by unconstitutional subordinate regulations.","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":"43431783","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

The Criticism on the Meaning of “Open Legal Policy” in Verdicts of Judicial Review at the Constitutional Court Mardian Wibowo 对宪法法院司法审查裁决中“开放的法律政策”含义的批判

Constitutional Review Pub Date : 2018-01-10 DOI: 10.31078/CONSREV326

Mardian Wibowo

{"title":"The Criticism on the Meaning of “Open Legal Policy” in Verdicts of Judicial Review at the Constitutional Court Mardian Wibowo","authors":"Mardian Wibowo","doi":"10.31078/CONSREV326","DOIUrl":"https://doi.org/10.31078/CONSREV326","url":null,"abstract":"In several verdicts of judicial review, the Constitutional Court formulates a concept of Open Legal Policy. The concept begins from a condition when a norm of law submitted to judicial review by the 1945 Constitution does not have reference in the 1945 Constitution. In other words, the open legal policy is a condition when the Constitutional Court cannot find any reference for the norm submitted to the judicial review. By using a construction method, this present research tries to find the meaning of a concept of open legal policy arranged by the Constitutional Court, then assessing whether the concept is in line with the spirit of judicial review. If the formulation of the concept done by the Constitutional Court has not been ideal, the deconstruction will be conducted toward the meaning that already exists until the open legal policy ideal with the perspective of the constitution is found. In this research, the finding shows different meaning of open legal policy between various verdicts of the Constitutional Court. Moreover, a new meaning is proposed including improvement of criteria of the open legal policy based on the difference between the object of regulation (what) and the content of the regulation (how).","PeriodicalId":32640,"journal":{"name":"Constitutional Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49283503","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

首页上一页