Constitutional Review

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ISSN / EISSN : 2460-0016 / 2548-3870
Total articles ≅ 90
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Rofi Aulia Rahman, Shu-Mei Tang
Constitutional Review, Volume 8, pp 151-183;

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.
Khairil Azmin Mokhtar
Constitutional Review, Volume 8, pp 87-112;

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.
Hamdan Zoelva
Constitutional Review, Volume 8, pp 37-61;

Islam and democracy are two inseparable parts of social and political life in Indonesia. Textually, democracy itself does not exist in the Islamic Holy Qur’an or the Hadith (Prophet Muhammad’s words and actions). However, implicitly and substantially, the basics of democracy are in the teachings of Islam, both in the Qur’an and the Hadith. The principles of Islamic teachings, such as equality, deliberation, cooperation (ta’awun), and good habits (taghyir), are compatible with democratic values. In addition, many idioms that form the basis of ethics and morals in society are generally derived from the experience of the Prophet Muhammad, correlating with the basic principles of modern democracy. In the context of Indonesia, it is undeniable that Islam has contributed to the climate of democratization. This further confirms that Islam is not against democracy. Both support each other.
Malika Rajan Vasandani, Dwi Putra Nugraha, Susi Susantijo
Constitutional Review, Volume 8, pp 62-86;

As the world’s third largest democracy, Indonesia’s governmental system should ideally function as a government of the people, by the people, for the people, to borrow the famous words of Abraham Lincoln. In reality, the House of Representatives of the Republic of Indonesia, an institution which should best represent the nation’s people in carrying out its duty of drafting legislative products, still fails to do so, as it is dominated by men. Deep-rooted patriarchal beliefs cloud the nation, while inadequate and inefficient laws have also contributed to the present situation of low female representation in politics. This article therefore looks into the effectiveness various laws and regulations intended to protect women’s political rights. It assesses the effect of the low participation of women on the quality and gender-sensitivity of laws passed by the House of Representatives. It also evaluates the urgency to introduce affirmative action policies through the 1945 Constitution to increase women’s participation rates. The authors have used the normative-empirical method, consisting of a statutory, conceptual and comparative approach. Materials used for this research include interviews with prominent figures, analysis of the law and a comparative study. Through this approach, the article concludes that prevailing regulations in Indonesia require improvement, as there needs to be a shift from the present quota system to a system of reserved legislative seats in order to reap the benefits of equal participation.
Neha Tripathi, Anubhav Kumar
Constitutional Review, Volume 8, pp 1-36;

Constitutions tend to regulate the relationship between religious and state authorities. Before the rise of the modern state, it was difficult to make proper distinctions between law, religion and morality. With the emergence of Western liberalism, the concept of democracy and secularism gained newfound attention, becoming ingrained and in tune with modern constitutional frameworks. Establishing the relationship between state and religion is a thorny issue for constitution-makers. Opponents of constitutional recognition of religion view religion as a private matter, relating to personal beliefs and conscience. This paper studies the comparative constitutional frameworks of India and Indonesia in relation to the right to religious freedom. As vibrant democracies comprised of ethnically diverse populations, both India and Indonesia grapple with issues concerning religious majorities and minorities. In India, Hindus are the majority, then Muslims, Christians, Sikhs and Buddhists; whereas in Indonesia, Muslims are the majority, then Christians, Hindus and Buddhists. Both India and Indonesia have ratified the International Covenant on Civil and Political Rights. The judgments of the constitutional courts in these countries have prompted constitutional law scholars to analyze the status of constitutionally recognized freedom of religion and its enforceability. This article first studies the relationship between state and religion in the contemporary sphere, thereby engaging in a comparative study of the formation of constitutional provisions in relation to religious freedom in India and Indonesia. Second, it aims to establish the importance of religious freedom within a constitutional framework. Third, it will discuss the issues surrounding recognition and enforcement of religious freedom in India and Indonesia, as well as providing an analysis from the perspective of majoritarianism and religious intolerance. Fourth, it will analyze landmark judgments of the constitutional courts of India and Indonesia in formulating and establishing the basic tenets of religious freedoms in the two nations. The role of the judiciary and governmental institutions in dealing with issues of religious freedom remains a central question in democratic countries such as India and Indonesia. Keeping in mind the need for a more holistic study and contributing to the literature in this area, the authors will present a comparative analysis of religious freedom in both these nations for nuanced understanding of religious rights and their interplay with the respective constitutions.
Muchamad Ali Safa'At
Constitutional Review, Volume 8, pp 113-150;

Indonesia is neither a religious state nor a secular state. Based on the Pancasila state ideology and the 1945 Constitution, Indonesia adheres to a symbiotic model in which the state and religion are different entities but have a mutually influencing relationship. This relationship pattern can be seen from several laws that regulate issues related to religion, especially Islam, which is embraced by the majority of Indonesians. As a political product, the pattern of relations between the state and religion in the law is dynamic. However, in accordance with the principles of a democratic rule of law, the dynamics of democratic politics are controlled by legal instruments, one of which is through the authority to review laws as one of the powers of the Constitutional Court. The Constitutional Court’s decisions in cases of judicial review of laws related to religion reinforce the model of the symbiotic relationship between the state and religion. Such decisions affirmed Pancasila as a model of Indonesian secularity that is needed for the sake of individual rights and freedoms, to balance or reconcile religious diversity, social integration and national development, and the independent development of the functional domains of society.
Cekli Setya Pratiwi
Constitutional Review, Volume 7, pp 273-299;

This study examines the constitutionality of Indonesia’s Anti-Blasphemy Law, which has been challenged unsuccessfully at the Constitutional Court on three occasions, in 2009, 2012, and 2018. While the Court has acknowledged the law’s provisions are open to multiple interpretations, it insists on maintaining the law as it is, on the grounds that the right to religious expression is not absolute, as freedom and rights are restricted under Article 28J of the 1945 Constitution. The Court believes that canceling the law would create a dangerous legal vacuum. The ambiguity of the Court’s decisions on the constitutionality of the Anti-Blasphemy Law is illustrated in recent blasphemy cases that have not been explored in previous studies. This study uses a doctrinal legal approach to examine why the Anti-Blasphemy Law is flawed and to analyze to what extent the ‘particular constitutionalism’ approach influenced the Court’s decisions when declaring the constitutionality of the law. As such, the Court’s misinterpretation of the core principles of the competing rights – the right to religious freedom and the right to freedom of expression – and its standard limitation, have been ignored. The findings of this study show that in dealing with the Anti-Blasphemy Law, the Court has a narrow and limited recognition of human rights law. The Court’s fear of revoking the Anti-Blasphemy Law is based only on assumptions and is less supported by facts. The Court has failed to realize that the implementation of the flawed Anti-Blasphemy Law in various cases has triggered public disorder, with people taking justice into their own hands.
Muzayyin Ahyar, Ni’Matul Huda
Constitutional Review, Volume 7, pp 326-349;

The main purpose of this article is to discuss Islamic constitutionalism in the context of Indonesian social movements. Constitutionalism is part of the study of constitutional law when the discussion focuses on the concept of limiting the power of the government. Using historical and sociological approaches, this article examines socio-political circumstances in Muslim society and their relationship to the spirit of constitutionalism in Indonesia. Indonesia does not explicitly name any particular religion in its Constitution, even though most of its population is Muslim. After a series of constitutional reforms over 1999– 2002, there was no formalization of Islam in the Constitution. Two important academic questions arise when dealing with this phenomenon. First, to what extent are Indonesia’s religious social movements involved in constructing the narrative of constitutionalism? Second, how do the spirit of constitutionalism and Islam play a role in strengthening Indonesia’s Constitution? This article notes that some Muslims in Indonesia have been striving to build a narrative of Islamic constitutionalism through social movements since the nation’s pre- independence era. Nevertheless, this Islamic constitutionalism has not resulted in the formalization of an Islamic constitution in Indonesia due to several factors: the historical roots of the nation’s establishment, the pluralist stance of Indonesia’s mainstream civil Islamic movements, and the presence of the Pancasila as the state ideology. This article also reveals that Indonesia’s Muslim majority and religious authorities play a role in building the spirit of constitutionalism; however, the formalization of a specific religion as the basis of the constitution has never been realized in Indonesia.
Saniia Toktogazieva
Constitutional Review, Volume 7, pp 300-325;

This article pursues two main objectives. First, to identify the main factors behind the establishment of constitutional review in Central Asia. Second, to define how those factors have shaped the institutional design of constitutional courts. In doing so, this article revisits standard theories of comparative constitutional law in terms of the origin of judicial review. While the insurance theory dominates the present global discourse on judicial review, it cannot completely and accurately account for the origin of constitutional review in Central Asia. Rather, this article conveys that the main impetus and motivation behind the establishment of constitutional courts and their institutional designs has been the economic interests of Central Asian states, determined by the region’s political and historical context.
Erin Elizabeth Davis
Constitutional Review, Volume 7, pp 241-272;

The right to adequate housing is an internationally recognized human right, yet it has been incontrovertibly desecrated by a lack of recognition, disproportionately affecting vulnerable groups. Economic, social, and cultural rights have encountered many challenges in an ever-increasing era of international exceptionalism and challenges arise in the protection of these rights. The right to housing is achieved in two ways: as a normative right and as a derivative right encompassed within economic, social, and cultural rights. This article introduces: (1) the normative development of economic, social, and cultural rights as recognized human rights, and their regulatory implementation through international instruments; (2) the concept of individuals as right-holders and duty-bearers of economic, social, and cultural rights; (3) understanding how the restriction of the right to housing leads to the violation of other human rights, including (a) the right to life, (b) the right to freedom from discrimination, and (c) the right to humane treatment – and the types of vulnerable groups that face the most discrimination, such as indigenous persons and women; and (4) protection against forced evictions, through an examination of the jurisprudence of the Inter-American System, European Court of Human Rights, and African Court on Human and Peoples’ Rights.
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