Book contents
- Proportionality in Asia
- Proportionality in Asia
- Copyright page
- Contents
- Figures
- Tables
- Contributors
- Acknowledgments
- Abbreviations
- Introduction
- Part I Structured Proportionality
- Part II Anemic / Ad Hoc Proportionality
- 5 Proportionality in Malaysia
- 6 Judicial Review of Restrictions on Constitutional Rights in Japan
- 7 Against the Currents
- 8 Manifest Disproportionality and the Constitutional Court of Thailand
- Part III Doctrinal Equivalents of Proportionality
- Conclusion
- Index
7 - Against the Currents
The Indonesian Constitutional Court in an Age of Proportionality
from Part II - Anemic / Ad Hoc Proportionality
Published online by Cambridge University Press: 18 September 2020
- Proportionality in Asia
- Proportionality in Asia
- Copyright page
- Contents
- Figures
- Tables
- Contributors
- Acknowledgments
- Abbreviations
- Introduction
- Part I Structured Proportionality
- Part II Anemic / Ad Hoc Proportionality
- 5 Proportionality in Malaysia
- 6 Judicial Review of Restrictions on Constitutional Rights in Japan
- 7 Against the Currents
- 8 Manifest Disproportionality and the Constitutional Court of Thailand
- Part III Doctrinal Equivalents of Proportionality
- Conclusion
- Index
Summary
This Chapter will show that this structured model of proportionality does not exist in the Indonesian constitutional realm, even though the term proportionality has been formally used by the Constitutional Court since 2010.While there is a textual basis under the Indonesian Constitution for constitutional rights to be balanced with other important interests – Article 28J (2) of the 1945 Constitution – the Indonesian Constitutional Court has used Article 28J (2) instead as an interpretative tool to limit or ignore the bill of rights. The Court’s jurisprudence to date suggests that the Court considers Article 28J (2) as a “trump card” to override constitutional rights. This Chapter further argues that the principle of proportionality has never flourished in Indonesian soil because of the lack of intellectual leadership in the Constitutional Court. The majority of the Constitutional Court Justices are not well versed with the notion of proportionality, and the Indonesian legal academia has also failed to generate a robust discussion on the principle of proportionality.
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- Proportionality in Asia , pp. 169 - 191Publisher: Cambridge University PressPrint publication year: 2020
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