Constitutional Court Research Articles

Dissolving a muslim marriage in South Africa and the right to freedom from discrimination: The talaaq v. the Divorce Amendment Act (2024) ‘routes’ in the context of H . A v N . A (February 2025)

In February 2024, Parliament passed the Divorce Amendment Act (DAA) to provide for the circumstances in which those who are married according to Muslim law can dissolve their marriages. This was pursuant to a Constitutional Court decision which found that some provisions of the Divorce Act unfairly discriminated against those married according to Muslim law. The DAA commenced on 14 May 2024. It defines a Muslim marriage and provides for, inter alia, the circumstances in which such a marriage may be dissolved and the distribution of assets at the dissolution of the marriage. However, it is silent on whether it replaces the husband’s right to terminate a marriage through talaaq and on the woman’s right to terminate a marriage. In H . A v N . A , the High Court declined to resolve the issue of whether a woman against whom a talaaq has been issued can institute divorce proceedings under the Act. Relying on its drafting history, the author argues that the DAA does not ‘take away’ a husband’s right to terminate a marriage through talaaq . Likewise, it does not take away the woman’s right to terminate a marriage hence guaranteeing the right to equality of the spouses in this regard. It is argued that taking away that right would amount to discrimination on the ground of religion. The DAA is equally applicable to all types of Muslim marriages irrespective of the Islamic denomination (sect).

Analyzing Public Sentiment on Indonesia's Constitutional Court Post-2024 Election Ruling: Insights from Appraisal Theory and Data Mining

This study examines public sentiment toward Indonesia’s Constitutional Court (Mahkamah Konstitusi, MK) following its 2024 regional election ruling. Using sentiment analysis and Martin and White’s (2005) Appraisal Theory, the research investigates emotional, evaluative, and dialogic patterns in public discourse through YouTube comments. A mixed-method approach was adopted by combining qualitative appraisal interpretation with quantitative categorization and machine learning-based sentiment classification, all conducted using the Orange data mining application. Orange was chosen for its visual programming interface, ease of integration between linguistic theory and machine learning workflows, and accessibility for researchers working across disciplines. From 4,010 YouTube comments, 223 relevant entries were filtered and analysed according to the three domains of Appraisal Theory: Attitude (affect, judgment, appreciation), Engagement (monogloss and heterogloss), and Graduation (force and focus), enabling a structured evaluation of public responses. Three machine learning models were employed for sentiment classification within Orange: Naive Bayes, for its speed and efficiency in text classification; Logistic Regression, for its interpretability and robust baseline performance; and Neural Network, for its ability to capture nuanced emotional expressions. Among these, the Neural Network achieved the highest performance (AUC: 0.958; F1 score: 0.853), followed by Logistic Regression (AUC: 0.931; F1: 0.807), and Naive Bayes (AUC: 0.925; F1: 0.802). Each model offered distinct strengths: Neural Network revealed deeper emotional intensity, Logistic Regression emphasized positive affect, and Naive Bayes captured dominant monoglossic tendencies in discourse. The findings reveal a predominance of neutral and moderately positive sentiments, with joy, fear, surprise, and dissatisfaction emerging as key affective responses. The integration of Appraisal Theory and sentiment modeling through Orange demonstrates a systematic and scalable method for interpreting public discourse in digital environments. This research contributes methodologically by bridging qualitative linguistic analysis with accessible data mining tools, and substantively by offering insight into how digital publics engage with constitutional authority. It advances the literature on institutional trust by illustrating how social media serves as a platform for democratic evaluations of judicial decisions.

Constitutional Fragility and Dual Nationality Disputes: Legal Implications of Madagascar 2023 Presidential Election

The 2023 presidential election in Madagascar raised serious constitutional and legal questions surrounding the eligibility of incumbent President Andry Rajoelina, who was revealed to have acquired French nationality in 2014. This fact, under the Malagasy Code of Nationality, automatically triggers the loss of his Malagasy citizenship—an essential constitutional requirement for presidential candidacy. Despite legal provisions and widespread objections from civil society and opposition coalitions, the High Constitutional Court (HCC) dismissed all challenges and upheld his candidacy. This paper identifies a gap in existing constitutional law literature in Madagascar, which has not sufficiently addressed the legal implications of nationality loss in the context of presidential eligibility. The paper aims to examine how key legal institutions, particularly the HCC and the electoral commission (CENI), responded to this controversy and what their actions reveal about judicial independence and constitutional compliance. Using a doctrinal approach grounded in positivist and originalist lenses, complemented by judicial independence and democratic legitimacy lenses, this study analyses relevant constitutional provisions, court decisions, and political developments. It argues that the HCC’s refusal to substantively address the nationality issue reflects broader institutional weaknesses and signals a worrying trend of legal uncertainty. The findings highlight the need for reform to restore public trust, ensure electoral integrity, and safeguard constitutionalism in Madagascar.

Constitutional Roots of Judicial Populism in India

Abstract The rise of judicial populism in various national jurisdictions is usually explained through the vicissitudes of power conflicts between the judiciary and other governmental organs. In this article, I try to locate the origins of India’s well-known judicial populism in the peculiarities of Indian constitutional design itself. I argue that the heavily statist nature of India’s transformative constitutionalism, specifically its “Directive Principles of State Policy,” has made the practice of classical judicial review increasingly untenable and provided the grammar for its judicial populism. Directive Principles add another layer of complexity to the “counter-majoritarian difficulty” in India, forcing the constitutional courts to traverse increasingly unconventional territory to legitimise their role. It helps explain why the famously powerful Indian judiciary has failed to act as an institutional check to the crisis of constitutionalism well underway in India. The article provides a stark example of the normative challenges faced by a constitutional court in a transformative constitution.

Electoral Reform Through the Indonesian Constitutional Court: Constitutionality of Presidential Candidacy Threshold in Indonesia

The Indonesian Constitutional Court has emerged as the electoral reform avenue, substantially changing Indonesia’s electoral governance. After 20 years of the presidential threshold norm existing in Indonesia, the Court issued Decision Number 62/PUU-XXII/2024, which abolished the presidential threshold to fulfill the constitutional rights of citizens. This study aims to reveal why the Court shifted its stance and what is its possible implication on reform in the country using the normative juridical method. The study found that the Court decision reflects the Court’s alignment towards representativeness values rather than governability. In addition, politicians lose control over the judicial decision in the presidential threshold. The Court’s decision is possible to shift because the Court was looking at the adverse consequences of the rules, not only to the textual interpretation of the Constitution and its original intent, thus becoming an avenue for electoral reform actors with less political power, such as ordinary citizens, NGOs, and minority political parties outside the parliament as well as those that not involved in parliamentary review during the election law making process.

Admissibility of Testimonium De Auditu in Criminal Evidence: An Analysis of Decision Number 1361/Pid.B/2022/PN.Sby

This study examines the juridical acceptance of testimonium de auditu testimony in criminal proceedings, as reflected in Decision Number 1361/Pid.B/2022/PN.Sby. The research concludes that the flexibility of judges in interpreting legal norms in evidence-gathering serves to achieve substantive justice. While Article 185 paragraph (1) of the Indonesian Criminal Procedure Code (KUHAP) requires direct firsthand experience for witnesses, the reality is that judges may still accept testimonium de auditu when supported by other relevant evidence that complements and strengthens the case’s narrative. This form of testimony has constitutional legitimacy as affirmed in Constitutional Court Decision Number 65/PUU-VIII/2010, which clarifies that indirect testimony is not automatically excluded, provided it is not the sole basis for a verdict and is corroborated by other evidence. This research supports the hypothesis that testimonium de auditu can be used as valid complementary evidence in certain cases, as long as it is within the boundaries of the legal system’s integrity and does not undermine the principles of fair trial and defendant rights. Furthermore, the study emphasizes the need for clearer guidelines in interpreting the admissibility of indirect testimony in Indonesian criminal procedure law.

Disputes Over General Election Results Based on Judicial Activism and Judicial Restrain in Realizing the Principles of Honest and Fair in General Elections

The settlement of general election result disputes (PHPU) is a crucial issue in realizing honest and fair elections in Indonesia. The Constitutional Court, as the guardian of the constitution, often faces a dilemma between applying Judicial Activism and Judicial Restrain in adjudicating PHPU cases, particularly regarding structured, systematic, and massive (TSM) violations. This article aims to analyze the concepts, influencing factors, and implementation of Judicial Activism and Judicial Restrain within the Constitutional Court's practices, by examining key rulings including Decision No. 01/PHPU-PRES/XVII/2019. This study employs a normative legal method with statutory, case, and conceptual approaches. The results show an inconsistency in the Constitutional Court's application of Judicial Activism, especially concerning TSM violations, which are often regarded as beyond its authority. On the other hand, Judicial Restrain is frequently used as a justification to limit the Court's assessment of substantive justice in the electoral process. This article recommends the need for a proportional balance between Judicial Activism and Judicial Restrain, as well as strengthening the Constitutional Court's role in ensuring electoral justice to protect citizens' voting rights and the quality of democracy.

Asset Protection through Prenuptial Agreements: A Family Law Perspective in the Modern Era

Amid the dynamics of modern social and economic life, marital agreements have become increasingly relevant, especially for young couples who begin building their careers and assets at an early stage. This study aims to examine the urgency of marital agreements from the perspective of Indonesian positive law and to analyze the prevailing social responses within society. Using a juridical-sociological approach, the research reviews the provisions in the Indonesian Civil Code, the Marriage Law, and the Constitutional Court Decision No. 69/PUU-XIII/2015, which allows for postnuptial agreements. Additionally, it explores young couples’ perceptions of this issue through literature review and secondary data analysis. The findings reveal that although marital agreements provide legal certainty and asset protection, many young couples are reluctant to pursue them due to negative societal stigma. Therefore, educational efforts and cultural legal reforms are needed to reframe prenuptial agreements as a preventive and rational legal measure, rather than a threat to marital harmony. This study contributes to promoting a more progressive and inclusive legal understanding among the younger generation.

INTERFAITH MARRIAGE THE VIWES OF ISLAMIC SCHOLARS AND NATIONAL LAW

The prohibition and the views of scholars interfaith marriage in Indonesia is further strengthened by the Constitutional Court Decision Number 24/PUU-XX/2022 and the issuance of the Supreme Court Circular Letter Number 2 of 2023 which has very broad implications. Not only does it affect marriage practices, but it also has a significant impact on the marriage registration system. Interfaith marriage in Indonesia also presents a number of complex legal problems for children born from such marriages. Children in these marriages often do not receive adequate legal protection because of the marriage so that they only have a civil relationship with their mother. In the legal context, children often face uncertainty regarding their legal status and legitimacy, because interfaith marriages in Indonesia are not recognized by the state. In terms of custody, if a divorce occurs, several problems arise, including to whom custody will be given. Regarding this problem, policy reform is expected because there is an urgent need for legal regulations to protect the rights of children born from interfaith marriages and provide legal justice for these children.

Juridical Implications of the Constitutional Court Decision Number 150/PUU-XXII/2024 on Legal Aid Provision in Indonesia

The provision of legal aid is a crucial aspect of law enforcement and access to justice, especially for underprivileged communities. However, the limited number of advocates and their uneven distribution has hindered the effectiveness of legal aid. One potential solution is involving civil servant lecturers (PNS) as advocates, although this was previously obstructed by the provisions in Law Number 18 of 2003 concerning Advocates. The Constitutional Court Decision Number 150/PUU-XXII/2024 granted legal standing for PNS lecturers to become advocates and participate in providing legal aid. This study, using a normative juridical method with a qualitative approach, found significant legal implications, such as the conditional unconstitutionality of two articles in the Advocate Law, the expansion of the definition of “advocate,” and the recognition of PNS lecturers, including government-contracted lecturers (PPPK), as eligible to represent clients in court. Previously, ASN lecturers were restricted from litigating and lacked technical regulations to support such roles. Following this decision, there is a need to harmonize regulations, establish ethical oversight bodies, expand lecturers' community service roles, improve teaching quality, and manage potential conflicts of interest. This study recommends revising the Advocate Law, issuing implementing regulations, strengthening university institutional frameworks, enhancing ministry-level oversight, and conducting public outreach on lecturers’ new role in expanding access to justice.

The Right to a Healthy Environment in the Light of the New Case Law of the Croatian Constitutional Court

This research paper aims to investigate if notable environmental matters have, in recent years, come before the Constitutional Court of the Republic of Croatia, in light of the increasing number of similar cases brought before the highest courts in European countries (Chapter 1). Previous analyses concerning constitutional adjudication on environmental issues have revealed that the Croatian Constitutional Court has seldom invoked Article 69 of the Constitution of the Republic of Croatia, a provision which enshrines the right to a healthy life (Chapter 2). However, on 18 April 2023, the Constitutional Court rendered a landmark judgment wherein it affirmed that the Croatian Constitution protects the citizens’ right to a healthy life and environment. The case involved a dispute over the constitutionality of the Decision on the Order and Dynamics of Landfill Closure. This paper will thoroughly examine and scrutinise this significant constitutional case (Chapter 3). To commence, the analysis shall delineate the magnitude of Croatia’s waste manage- ment deficiencies—failings which were deemed by the Constitutional Court to violate the principle of legality and the constitutional duty to comply with EU laws (Chapter 3.1). Thereafter, the study shall address the formal inconsistency of the disputed Decision with the Constitution (Chapter 3.2). Subsequent chapters shall demonstrate how the Constitu- tional Court assessed point III of the contested Decisions as an excessive (and therefore disproportionate) limitation of the fundamental right to a healthy life and environment prescribed in Article 69 of the Constitution (Chapter 3.3) and further, how it encroached upon the constitutionally safeguarded right of citizens to local and regional self-gov- ernment (Chapter 3.4). The concluding portion of this paper shall recount the process by which the Constitutional Court’s decision took place (Chapter 3.5) and shall conclude with reflections upon the prospective influence this decision may exert upon the trajectory of environmental jurisprudence and legislative development within Croatia (Chapter 4).

Tracing the Past, Shaping the Future: Latin American Constitutionalism and Its Discontents - Interview With Professor César Landa

Professor César Landa, a renowned constitutional law scholar and distinguished public servant in Peru, is one of the unique figures who successfully bridges the worlds of academia and political practice. In addition to his academic position as a professor of constitutional law, he has held several key state offices, including President of the Peruvian Constitutional Court, ad hoc judge of the Inter-American Court of Human Rights, Deputy Minister of Justice, and Minister of Foreign Affairs. Drawing on this unique combination of experience, Professor Landa offers a rich and informed perspective on the democratic challenges facing Peru and Latin America more broadly. At a time when democratic erosion and the crisis of representative institutions have become global phenomena, his reflections on institutional fragility, constitutional resilience, and the potential for democratic renewal have both scholarly and practical significance. This interview aims to contribute to the broader conversation on constitutionalism in the region and to bring Professor Landa’s deep insights into the academic literature.

Siyāsah Sharʿiyyah and State Governance in Zakat Management: A Case Analysis of Judicial Review on BAZNAS Authority vis-à-vis LAZ/BAZ Institutions

Law No. 38/1999 established Indonesia’s first legal framework for zakat management, institutionalizing the National Zakat Agency (BAZNAS) and civil society-led Amil Zakat Institutions (LAZ). Revised through Law No. 23/2011 to enhance oversight and systemic integration, the amendment triggered debates over four critical issues: (1) potential criminalization of LAZ/BAZ (Articles 38-41); (2) centralization of authority under BAZNAS; (3) operational restrictions on LAZ/BAZ (Article 20); and (4) legal ambiguities and perceived inequities. This study examines state regulatory roles in zakat governance through Constitutional Court Case 97/PUU-XXII/2024, which challenges BAZNAS’s exclusive authority. Using normative juridical methods, the paper analyzes statutory frameworks and LAZ’s legal arguments against Law 23/2011. Findings reveal tensions between centralized state control and civil society autonomy, underscoring unresolved legal ambiguities in Indonesia’s zakat ecosystem. The research contributes to discourse on balancing regulatory efficiency with participatory governance in Islamic social finance systems.

Non-Judicial Activities of the Indonesian Constitutional Court: Do They Foster Judicial Reputation?

The Indonesian Constitutional Court is defined as a judicial body with specific competencies as stated in the 1945 Constitution. Given its significance and the heightened attention it receives from the public, the rulings of independent courts and impartial judges are vital for maintaining the reputation of the Indonesian judiciary and the public's confidence in its work. In addition to adjudicating cases, the Constitutional Court and its judges are involved in various non-judicial activities. This research article explores the reasons behind the Constitutional Court’s engagement in these activities, outlines the various types of non-judicial actions, and evaluates their effect on the court's reputation. The aim of this research is to establish a conceptual framework and assess the influence of non-judicial activities on judicial reputation by utilizing conceptual, statutory, and comparative frameworks, supported by empirical data from official documents.Top of Form The results show that the court participates in non-judicial activities to obtain benefits like increased popularity, public interest, visibility, preventing its decisions from being overturned by other judicial entities, and enhancing its reputation and influence. Often, these activities involve promoting the court's work to both local and international judicial communities to foster dialogue and connections with similar courts and stakeholders. Furthermore, non-judicial activities can influence public interest and engagement. While these initiatives benefit the institution, judges, and the public, they do not inherently improve the Constitutional Court's reputation, as its standing fundamentally relies on the quality of its decisions and its credible independence, impartiality, and integrity.

RIGHTS OF NATURE: THEORY AND PRACTICE

Objectives: Rights of Nature (RoN), the idea that natural entities, such as forests, rivers and mountains, should be endowed with rights like humans, emerged in 1972 in the United States of America (USA) through a work by Christopher Stone, a Professor of Law. This article analyses the theoretical and philosophical foundations of RoN, the pattern of its adoption, and the success and failure in its practice. Method/Data Sources: The documents on RoN of the countries that have adopted RoN are the main sources of information/data. Other sources include publications by researchers on RoN, reports by environmental organisations such as Global Alliance for RoN, Eco Jurisdiction Monitor, and Earth Law Center, and recent print/electronic media reports on RoN. Theoretical Framework: In order to provide a contextual framework, the concept of nature is discussed. The philosophical basis of RoN is the indigenous people’s perspective of the sacredness of natural entities and their practice of living in harmony with nature. The concepts of legal personality and legal rights provide the theoretical background for RoN. The emergence of RoN is consequent on the increasing acceptance of ecocentrism, a philosophy of the intrinsic value of nature as a more effective environmental management approach compared to the dominant anthropocentrism which is centred around the dominance of humans over nature. Results and Discussion: Four patterns in the endowment of RoN are identifiable and analysed. These are whole country, parts of a country, whole natural entities, and parts of natural entities application. It is only in Ecuador, Bolivia, Uganda and Panama that RoN applies to all parts of the country. United States is a typical example of where RoN applies to only areal units within a country. There are many more cases of where RoN applies to units of a physical entity than to the entire entity such as rivers. Constitutional review, laws and court decisions have been the channels of introducing RoN. In terms of the spatial distribution, South America is the epicentre. Ecuador is a typical example of where the RoN Movement has been largely successful while USA is a good example of where it has not. As the experience of Ecuador has shown, the success of RoN requires an effective mobilization of the citizenry.

Whose Interest is the ‘Best Interest of the Child’? – The German Federal Constitutional Court’s Decision of 1 February 2023 on the Law to Combat Child Marriage

Whose Interest is the ‘Best Interest of the Child’? – The German Federal Constitutional Court’s Decision of 1 February 2023 on the Law to Combat Child Marriage

The Language of Justice: Examining Courtroom Discourse in an Electoral Conflict

Abstract Indonesia’s Presidential election in 2019 was a repeat contest between Joko Widodo (JM) as the incumbent, and Prabowo Subianto (PS) as the second-time contender. Once the manual counting of the votes was over, the General Election Committee declared that JM gained more than 55% of the votes; yet that count was challenged by PS. The issue was settled in the Constitutional Court of Indonesia. This study aims to discuss the courtroom dynamics of that dispute, using corpus-assisted methods to analyze a dataset consisting of all the official transcripts from the proceedings in the courts. The transcripts from all roles in the court (judges, lawyers, witnesses, and experts) were compiled as a corpus. The corpus was tokenized, annotated, indexed, and analyzed using LancsBox 6.0, a corpus query system that supports the Indonesian language, the language used in the court. Our key findings were that: the number of speakers, and thus the relative number of words, from the petitioner’s side were much higher than other parties, thus leading to more influence over the proceedings; PS’ team used some witnesses as pseudo-experts to give additional expert-like testimony; and even though legal-domain-specific terms were used, we also found a substantial number of colloquial terms to help mediate power relations within the courtroom. Drawing upon corpus-based evidence, this study describes the language used by both parties, which ultimately led to JM’s electoral success.

Freedom of Speech in the Context of Constitutional Law: Maintaining the Balance Between Freedom and Public Order

Freedom of speech is a fundamental human right in democratic systems, including in Indonesia, which is guaranteed by the 1945 Constitution of the Republic of Indonesia. However, despite being protected by the constitution, this freedom is not absolute and needs to be limited in certain cases to maintain public order, national security, and the rights of others. This study aims to analyze how freedom of speech is regulated in Indonesia's constitutional law, and how the state maintains the balance between individual freedom and public order. Using a normative research method, this study examines the legislation related to freedom of speech, such as the 1945 Constitution, the Electronic Information and Transactions Law (UU ITE), and relevant Constitutional Court decisions. Limitations on freedom of speech in Indonesia are regulated based on international legal principles that recognize freedom of expression, with the caveat that this right can be limited for the sake of public interest, morality, and national security. The findings of this study indicate that while freedom of speech is a crucial right in democracy, the state has the authority to limit this freedom under certain conditions. These limitations must be applied proportionally and in accordance with the principles of a democratic rule of law. The state plays a vital role in creating a balance between freedom of speech and public order, ensuring that this freedom can be maximized without undermining the social and political stability of the country.

Urgency of Expanding the Meaning of State Financial Losses Based on Ecological Losses Resulting from Corruption in the Natural Resources Sector

This study aims to analyze the urgency of expanding the meaning of state financial losses by including ecological losses resulting from corruption in the natural resource sector based on an ecocentric approach. This study uses a normative juridical method with a statute approach, a case approach, and a conceptual approach. The novelty of this study lies in the use of an ecocentric approach in the concept of state financial loss, which asserts that natural resources are part of state wealth, so their damage due to corruption in the natural resource sector must be considered as state financial loss. However, this contradicts the current legal approach, which only recognizes “actual loss” based on Constitutional Court Decision No. 25/PUU/XIV/2016, thereby hindering the recognition of ecological losses as part of state financial losses. The results of the study show that corruption in the SDA sector not only has an impact on state financial losses but also causes severe environmental damage. However, current law enforcement still uses an anthropocentric approach that only considers state losses in financial terms without including ecological damage caused by SDA corruption as part of state financial losses, so there is an urgent need to expand the meaning of state financial losses to include ecological losses. The conclusion of the research suggests that incorporating ecological losses into the calculation of state financial losses ensures that criminal law enforcement holds corrupt actors accountable not only for financial aspects but also for environmental restoration, thereby supporting ecological justice and the sustainability of natural resources.

The Intersection of Citizenship and Freedom of Religion: Legal Challenges in a Multicultural Society

This study investigates the correlation between citizenship status and religious freedom within Indonesia's multicultural society, emphasizing the legal obstacles encountered by religious minority groups. The methodology employed is a normative-doctrinal legal approach, analyzing several national legal instruments, Constitutional Court rulings, and literature on legal and human rights. The research findings indicate a discrepancy between constitutional provisions that ensure religious freedom and prevailing legal practices that are often discriminatory. For instance, restrictions persist that restrict access to civil registry and marriage for followers of faiths beyond the six recognized religions. Furthermore, the legal status of groups like Ahmadiyah and practitioners of indigenous traditions signifies a de facto exclusion from citizenship. The findings suggest that the Indonesian legal system has not yet adequately ensured the concept of non-discrimination within the context of an inclusive rule of law. This research advocates for the enhancement of the alignment between positive legal norms and constitutional ideals, as well as the facilitation of additional studies utilizing comparative and empirical methodologies to advance equitable legal protection for minority groups.