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Constitutional Review
Number of Followers: 3  

  This is an Open Access Journal Open Access journal
ISSN (Print) 2460-0016 - ISSN (Online) 2548-3870
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  • Social Rights and the Turkish Constitutional Court

    • Authors: Engin Yıldırım
      Pages: 188 - 202
      Abstract: Through a brief examination of the Turkish experience, this article endeavors to illuminate the debate on the role of constitutional courts in interpreting social rights. The Turkish Constitutional Court has in many cases rejected applications for the annulment of legislation related to social rights, on the grounds that it is within the legislature’s discretion to determine public policy priorities based on economic resources and economic stability. This article suggests the Turkish Constitutional Court has narrowly interpreted constitutionally recognized social rights within the boundaries of the Turkish Constitution, with the notable exception of labor rights in individual applications.
      PubDate: 2021-12-31
      DOI: 10.31078/consrev721
      Issue No: Vol. 7, No. 2 (2021)
       
  • The Religiosity of the Indonesian Constitution: Article 29(1) and Its
           Interpretation

    • Authors: Ahmad Rofii
      Pages: 203 - 240
      Abstract: This paper examines the problem of whether the inclusion of religious words in the Indonesian Constitution is tantamount to the establishment of a religious constitution. By focusing on the Constitution’s provision on “belief in the One and Only God” in Article 29(1), this paper challenges the received theory of the religiosity of the Constitution. To that end, the paper first investigates the doctrinal and historical implications of Article 29(1). Particular analysis concerns the implications of this constitutionalization for Islamic law. The Constitutional Court’s decision on interreligious marriage is critically examined as an example of how the received theory is endorsed and articulated in the case of marriage. This paper argues that Article 29(1) concerns all religions, without any implied exclusion of non-monotheistic religions. Moreover, this paper affirms what is called the Pancasila state, located between an exclusively secular state and a religious or theocratic state. This arguably makes the notion of the religiosity of the Constitution unjustified. The Constitutional Court, however, has interpreted Article 29(1) in a strongly religious sense, leading to religious supremacy and, accordingly, is contrary to how the Constitution ought to be understood.
      PubDate: 2021-12-31
      DOI: 10.31078/consrev722
      Issue No: Vol. 7, No. 2 (2021)
       
  • Housing as a Human Right within an Era of International Exceptionalism

    • Authors: Erin Elizabeth Davis
      Pages: 241 - 272
      Abstract: 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.
      PubDate: 2021-12-31
      DOI: 10.31078/consrev723
      Issue No: Vol. 7, No. 2 (2021)
       
  • Rethinking the Constitutionality of Indonesia’s Flawed
           Anti-Blasphemy Law

    • Authors: Cekli Setya Pratiwi
      Pages: 273 - 299
      Abstract: 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.
      PubDate: 2021-12-31
      DOI: 10.31078/consrev724
      Issue No: Vol. 7, No. 2 (2021)
       
  • Socio-Economic Origins of Constitutional Review in Central Asia: Political
           Economy and Politico-Historical Context as Defining Factors

    • Authors: Saniia Toktogazieva
      Pages: 300 - 325
      Abstract: 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.
      PubDate: 2021-12-31
      DOI: 10.31078/consrev725
      Issue No: Vol. 7, No. 2 (2021)
       
  • Islamic Constitutionalism: Social Movement and the Editorial Office
           Framework of the Indonesian Constitution

    • Authors: Muzayyin Ahyar, Ni’matul Huda
      Pages: 326 - 349
      Abstract: 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.
      PubDate: 2021-12-31
      DOI: 10.31078/consrev726
      Issue No: Vol. 7, No. 2 (2021)
       
 
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