Model-model Mahkamah Konstitusi dan Model-model Pengujian Konstitusional di Beberapa Negara

Summary

In this lecture, the speaker explains the different models of constitutional review used by various countries. They highlight the decentralized model, as seen in the U.S., and the centralized Kelsenian model, which is prevalent in civil law countries. The speaker delves into the origins of these models, including the creation of the Constitutional Court in Austria, and traces its influence on other nations. The lecture also touches on the French model, which allows for the review of draft laws before enactment. The aim is to show that the Indonesian Constitutional Court operates within a broader global context of constitutional review mechanisms.

Takeaways

• 😀 The lecture focuses on comparing constitutional review models across various countries, as described in a book titled 'Models of Constitutional Review in Various Countries'.
• 😀 Constitutional review mechanisms are not unique to Indonesia; most modern democratic and rule-of-law countries have similar institutions.
• 😀 There are two major types of constitutional review systems: the decentralized model (e.g., the United States) and the centralized model (e.g., countries influenced by Civil Law tradition).
• 😀 The decentralized model, exemplified by the U.S., allows multiple courts to engage in constitutional review, rather than a single institution.
• 😀 The centralized model, which is common in Civil Law countries, involves a specific constitutional court that exclusively handles constitutional review, such as the Constitutional Court in Indonesia.
• 😀 The Civil Law tradition is based on written laws and formal codes, whereas Common Law countries like the U.S. emphasize judicial decisions as precedents.
• 😀 In the early 20th century, Austria pioneered the establishment of constitutional courts, inspired by the ideas of Austrian jurist Hans Kelsen, creating the first constitutional court in Vienna in 1920.
• 😀 After World War II, many countries, including Germany and France, adopted similar systems, leading to over 80 nations now having constitutional courts or similar institutions.
• 😀 In Common Law countries, judicial review was first practiced by the U.S. Supreme Court, notably in the landmark case Marbury v. Madison (1803), which set a precedent for judicial review globally.
• 😀 France introduced a unique variation of constitutional review through its Constitutional Council, which reviews bills before they become law, unlike other systems where laws are reviewed post-enactment.

Q & A

What are the two main models of constitutional review discussed in the lecture?

The two main models of constitutional review discussed are the Decentralized Model and the Centralized Model. The Decentralized Model is seen in Common Law countries like the United States, while the Centralized Model, influenced by Hans Kelsen, is adopted in Civil Law countries like Austria and Germany.

What is the key difference between the Decentralized and Centralized models of constitutional review?

The key difference is that the Decentralized Model does not require a separate institution for constitutional review; instead, courts like the U.S. Supreme Court handle it. In contrast, the Centralized Model relies on a dedicated body, such as the Constitutional Court in Austria, to review laws for constitutionality.

How did Hans Kelsen contribute to the development of the Centralized Model?

Hans Kelsen proposed the creation of a separate institution, the Constitutional Court, to handle constitutional review in Austria in 1919. His idea was adopted and became the foundation for the Centralized Model of judicial review, which has since been implemented in several countries.

Why did countries with a Civil Law tradition, like Austria and Germany, choose to create separate constitutional courts?

Countries with a Civil Law tradition created separate constitutional courts to address complications in reviewing laws due to their distinct legal systems. These courts were necessary to ensure that laws were in alignment with the constitution, as Civil Law systems are typically based on written statutes.

What is the significance of the *Marbury v. Madison* case in the context of judicial review?

The *Marbury v. Madison* case, decided in 1803, is significant because it established the principle of judicial review in the United States. In this landmark decision, the U.S. Supreme Court, led by Chief Justice John Marshall, ruled that the Court had the power to invalidate laws that conflicted with the Constitution.

How does the French Constitutional Council differ from other models of judicial review?

The French Constitutional Council operates differently by reviewing draft laws before they are enacted, rather than reviewing laws after they are passed. This is known as **Judicial Preview** rather than judicial review, ensuring that laws are in line with the constitution before becoming law.

Why is the French system of judicial preview considered more stable and efficient?

The French system of judicial preview is considered more stable and efficient because it provides certainty by preventing laws from being challenged after enactment. This ensures that once a law is passed, it cannot be easily contested, unlike systems that allow post-enactment judicial review.

What are the criticisms of the French Constitutional Council?

Critics argue that the French Constitutional Council may be politically influenced because its members are typically former politicians, such as former ministers or parliamentarians. This makes the Council seem like an extension of the parliament, which undermines its impartiality and independence.

How does the role of the Constitutional Court in Indonesia align with global practices of judicial review?

Indonesia's Constitutional Court follows the **Centralized Model** of judicial review, similar to countries like Austria and Germany. This model ensures that a dedicated body reviews laws for constitutionality, aligning Indonesia's system with modern practices in other democratic nations.

What are the advantages and disadvantages of the three constitutional review models discussed?

The Centralized Model offers clear authority and consistency but may lack flexibility. The Decentralized Model allows for flexibility but can result in inconsistent outcomes. The French model of Judicial Preview ensures legal stability but may face political interference due to the involvement of non-judicial members in the review process.