Constitutional Review

Journal Information
ISSN / EISSN : 2460-0016 / 2548-3870
Total articles ≅ 78
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DOAJ
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Herbert Küpper
Constitutional Review, Volume 7, pp 53-91; https://doi.org/10.31078/consrev713

Abstract:
The Indonesian Constitution offers many interesting insights to a German constitutional scholar. The most striking feature is the balance between the unitarian state and the natural diversity of Indonesia. In Germany, the state architecture reflects regional diversity in its federal framework, whereas Indonesia combines the unitarian state with various decentralising elements. This balance between unitarianism and regional diversity is probably the most conspicuous feature of the Indonesian Constitution and appears to be a suitable compromise between the conflicting aims of stabilising the state and the nation on the one hand and accommodating the geographic, demographic and cultural differences within the country on the other. Another striking feature is the presidential system, which is quite the opposite of the parliamentary system of the German Constitution. Other points that, from the perspective of German constitutional law, invite comparison are the constitutional provisions about the legal system,Indonesia’s constitutional monotheism, which is quite the opposite of the German idea of the state being strictly neutral in religious affairs, and human rights.
Adfin Rochmad Baidhowa
Constitutional Review, Volume 7, pp 124-152; https://doi.org/10.31078/consrev715

Abstract:
Debate on the quality and durability of Indonesia’s democracy has intensified in recent years. Political scholars had generally praised the country’s democratic achievements and stability in the two decades following the 1998 resignation of long-serving president Suharto. But more recently, a growing number of academics have noted that elements of Indonesia’s democracy are being eroded. While the issue of Indonesia’s democratic backsliding has gained considerable attention and generated much academic literature, few scholars have analyzed why Indonesia has not entered a phase of rapid backsliding or a return to authoritarianism. This article argues the role of the Indonesian Constitutional Court in the consolidation of democracy has been frequently overlooked. By using a qualitative approach involving archival research of the Constitutional Court’s sessions on disputed results in Indonesia’s 2019 elections, this article finds the Constitutional Court has been able to prevent rapid democratic backsliding and even a reversion to authoritarianism, by ensuring competitiveness, participation and accountability in elections.
Constantinos Kombos, Athena Herodotou
Constitutional Review, Volume 7, pp 92-123; https://doi.org/10.31078/consrev714

Abstract:
Economic, Social and Cultural (ESC) rights have been present and active in the Cypriot legal order from the moment of its constitutional genesis. Due to the special relationship between the Constitution and the European Convention on Human Rights (ECHR), the judiciary has adopted a unique approach when interpreting the Constitution; it has been willing to engage into a comparative juridical analysis and to rely on the ECHR and the findings of the European Convention on Human Rights (ECtHR). Through this nexus with the ECHR and the streamlined approach with the ECtHR, the legal system of Cyprus has been progressive in placing social and economic rights – and to a lesser extent cultural rights – in a secure position. This traditional approach of the Cypriot courts was called into question by the 2011-2016 economic crisis, which challenged the interplay between domestic and external normative systems. The aim of this paper is to assess the impact of the recent economic crisis on the protection of ESC rights and the change in the balance between domestic and normative systems. The analysis concludes that the protection of ESC rights under the Cypriot Constitution, as formed by Cypriot case law, has been substantive and effective, while positively influenced by the extensive deployment of the comparative method. That long-standing approach has been challenged by the economic crisis and it seems that the extrovert judicial viewpoint is now partly reconsidered. The Supreme Court has indicated, albeit in specific instances, its willingness to disregard guidance from external influences and to focus instead on the idea that national constitutional protection can and should exceed that of the ECHR.
Melissa Crouch
Constitutional Review, Volume 7, pp 1-25; https://doi.org/10.31078/consrev711

Abstract:
Political transitions from authoritarian rule may lead to a process of court reform. Indeed, court reform has been a central pillar of the law and development movement since the 1960s. What challenges do court reform efforts face after authoritarian rule in Indonesia and to what extent can specialized courts address these challenges? In this article, I examine court reform and the establishment of specialized courts in Indonesia post-1998. I argue that we need to pay attention to the politics of court reform after authoritarian rule. Specialized courts as a type of institutional reform need to be considered together with judicial culture in order to address fundamental challenges in the courts.
Giulia Baj
Constitutional Review, Volume 7, pp 153-187; https://doi.org/10.31078/consrev716

Abstract:
One expression of cultural rights is the right to enjoy cultural heritage. However, the latter is not efficiently protected in situations of armed conflict. In many cases, armed non-State groups (ANSGs) have destroyed or looted cultural heritage items. The United Nations Security Council has intervened with Resolution 2347 (2017), welcomed by many as a milestone in the international protection of cultural heritage in conflict situations. However, this Resolution presents several limitations. The protection of cultural heritage from destruction and exploitation does not appear as the main focus, but rather as a means to fight terrorist groups. The attacks against cultural heritage are considered “war crimes”, but only “under certain circumstances”. The Resolution encourages States “that have not yet done so to consider ratifying” treaties on the issue in question; however, these instruments are treaties drafted and ratified by States. Problems of compliance by non-State actors, as ANSGs, arise. Hence, the capacity of theResolution to effectively protect cultural heritage in conflicts involving ANSGs is debated. This paper analyses the text of Resolution 2347 (2017), resorting to traditional means of interpretation to highlight its limitations, and considers how a general sense of the necessity to protect cultural heritage from attacks committed by ANSGs has emerged, as demonstrated by the International Criminal Court's Al Mahdi case. The paper then considers other ways to guarantee the protection of cultural heritage from ANSGs. A proposal for stronger protection of cultural heritage by States through both international humanitarian law (IHL) and international human rights law (IHRL) is presented. In particular, the connection between the protection of cultural heritage, the guarantee of cultural rights and other human rights is presented, resorting to instruments of doctrine and analyzing instruments of practice. Finally, the case for the stronger international cooperation for the protection of cultural heritage is made; problems of compliance by ANSGs may persist, but the systematic destruction of cultural heritage items can be considered a violation of cultural rights, thus requiring the cooperation of all international stakeholders.
Miriam Cohen, Martin-Olivier Dagenais
Constitutional Review, Volume 7, pp 26-52; https://doi.org/10.31078/consrev712

Abstract:
Canada has been at the forefront of the recognition of human rights, including economic, social and cultural rights (ESC rights) in the international scene. As a party to the International Covenant on Economic, Social and Cultural Rights,1 Canada has, over the years, implemented in legislation and case-law some ESC rights such as the right to health, education and social welfare.While ESC rights were not explicitly identified in the Charter of Rights and Freedoms,2 which forms part of the Canadian Constitution, ESC rights in different forms have received some protection in the Canadian legal order. An analysis of the Canadian record with respect to ESC rights demonstrates the immense gap between a glorified image of Canada as an international human rights proponent (the ‘utopia’) and the actual implementation of internationally recognized human rights in Canada (the ‘reality’). As Canada is bound to face major transformational changes to its economy and social fabric in the years to come, the Courts will have to adapt quickly and efficiently to ensure a smooth transition. This paper overviews the evolution of the case-law on ESC rights in Canada in light of its international obligations, and suggests, the relevant ESC rights jurisprudence signals a disconnect with Canada’s international obligation ‘requiring progressive implementation to the maximum of available resources by all appropriate means.’
Christoph Enders
Constitutional Review, Volume 6, pp 190-209; https://doi.org/10.31078/consrev621

Abstract:
The Basic Law for the Federal Republic of Germany did originally not provide for social or economic rights understood as claims to benefits. The Federal Constitutional Court (FCC) did, indeed, recognise the states obligation to protect individuals against assault by others (right to security) and further ruled that everyone has the right to use facilities provided by the state under equal conditions (right to participation). These rights, however, aim to ensure that the state uses existing means as intended. In addition, the FCC by now has recognised a “right to the guarantee of a dignified minimum subsistence”. It is an original entitlement as the state is obliged to create and provide benefits for individuals in need. This new legal construction, however, misconceives the division of responsibilities between the FCC and the legislator and collides with the principle of the separation of powers
Mária Éva Földes
Constitutional Review, Volume 6, pp 282-310; https://doi.org/10.31078/consrev624

Abstract:
This paper explores whether constitutional litigation contributes to sustaining the equity element of the right to health. Equity entails a fair distribution of the burden of healthcare financing across the different socio-economic groups of the population. A shift towards uncontrolled private healthcare provision and financing raises equity challenges by disproportionately benefitting those who are able to afford such services. The extent to which equity is enforced is an indicator of the strength of the right to health. However, do domestic constitutional courts second-guess, based on equity, policy decisions that impact on healthcare financing? Is it the task of constitutional courts to scrutinize such policy decisions? Under what conditions are courts more likely to do so? The paper addresses these questions by focusing on the case of Hungary, where the right to health has been present in the Fundamental Law adopted in 2010 and the Constitutions preceding it. While the Hungarian Constitutional Court has been traditionally cautious to review policy decisions pertaining to healthcare financing, the system has been struggling with equity issues and successive government coalitions have had limited success in tackling these. The paper discusses the role of constitutional litigation in addressing such equity concerns. In doing so, it contributes to the discussion on the role of domestic constitutional courts in the protection of social and economic rights.
Stefanus Hendrianto
Constitutional Review, Volume 6, pp 241-281; https://doi.org/10.31078/consrev623

Abstract:
Previous studies on the development of socio-economic rights in Indonesia heavily focus on the Constitutional Court’s decisions in upholding the rights. But there is still minimum study on the political economy behind the development of socio-economic rights in Indonesia. This article will analyze the development of socio-economic rights through the lenses of the right to social security. This article relies on two major theoretical frameworks to analyze the development of the right to social security in Indonesia. The first theoretical framework is the authoritarian constitutionalism in the economic sphere. The second theoretical framework in this article is Kathrine Young’s theory of the construction of socio-economic rights. This article postulates that the rights to social security has been constitutionalized but not constituted in Indonesia for several reasons. First, and foremost, the legacy of authoritarian constitutionalism that prioritizing economic growth over the fulfilment of social economic rights. The “growth” ideology has contributed to the discrepancy between the constitution and reality, in which the government merely considers protection of socio-economic rights as extra cost, which will hamper the growth of the economy. Second, the lack of philosophical and comparative analysis in the interpretation of rights to social security. Third, the transformation of the Court as a detached court in the enforcement of the rights to social security. The element of detachment is clearly seen in the Court’s too much deferral to the Executive and Legislative branches in defining the scope and meaning of the right to social security. Finally, the failure of social movement to create a new narrative on injustice and the importance of rights to social security.
Kamil A. Strzępek
Constitutional Review, Volume 6, pp 338-365; https://doi.org/10.31078/consrev626

Abstract:
The article is pertaining to the relationship between the European Convention on Human Rights and the Polish national law. Upon the introduction of the system of economic, social and cultural rights contained in the Constitution of the Republic of Poland of 1997, the article considers what rules determine the relationship between the application of the law by Polish courts and the European Court of Human Rights in Strasbourg. The paper concludes by showing how Polish courts and the European Court of Human Rights in Strasbourg refer to the right of property. It’s one of the fundamental human rights, when they examine a case. It occurs that clauses, which limit this right, are sometimes understood in a different way by Polish courts and the European Court of Human Rights. Regarding the above, the case of Waldemar Nowakowski v. Poland of the European Court of Human Rights in Strasbourg is discussed. Furthermore, the article presents how the Polish Government executes the judgment of the European Court of Human Rights in Strasbourg delivered in the above-mentioned case.
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