Attachment 2: Review Form
Code : CR21MSA
Title : Islamic Constitutionalism Through Constitutional Court: Does it Make Sense?
A. Review
No. Aspect Review
1. Title
Comment:
The sub-title does not accurately reflect the contents of the paper. The paper does not raise a question about whether Islamization of the Indonesian constitution through the Constitutional Court makes sense. The argument made in the paper is that the Court is creating a system of Islamic
constitutionalism.
Suggestion: Change the sub-title into more relevant topic, must related with the contents of the paper
Leave out the sub-title.
2. Abstract
Comment:
The abstract should summarize the argument of the paper. This abstract includes a comment on the capacity of the Constitutional Court to implement an Islamic system without the cooperation of other organs of the state that is not part of the analysis in the paper.
Suggestion: Revised parts that does not correlate with the topic of the paper (the capacity of the Constitutional Court to implement an Islamic system), into more relevant subject.
Limit the abstract to a summary of the argument.
3. Introduction
Comment:
The Introduction should consist only of an explanation of the research questions or arguments of the paper. The Introduction of this paper contains a
Editorial Office:
Center of Research and Case Study The Constitutional Court of the Republic of Indonesia
Jl. Medan Merdeka Barat No. 6 Jakarta 10110 Phone: (62-21) 23529000, Fax (62-21) 3520177 Website: http://ejournal.mahkamahkonstitusi.go.id E-mail: [email protected]
ISSN: 2460-0016 e-ISSN: 2548-3870
Review Form Page 1
substantive analysis of the ways in which the Indonesian constitution meets the author’s definition of Islamic constitutionalism.
Suggestion: Replace the substance according to the rules
The introduction should contain a statement of the thesis of the paper, an explanation of the significance of that thesis, and a summary of the argument contained in the paper that supports that thesis.
4. Methods
(optional)
Comment:
The author states that the argument is based on an analysis of black letter law.
The methods section then proceeds to discuss a socio-legal approach that relates the law to a wider social and political context. The body of the paper, however, is limited to a discussion of the content of the Constitutional Court’s decisions and makes no attempt to contextualize them.
Suggestion: Enter the subject and method according to the discussion of this article.
5. Analysis and Discussion
Comment:
The analysis is not sufficiently rigorous. The concept of Islamic constitutionalism is defined so broadly that virtually any system would qualify.
Suggestion: It should be related to religious rules have clear boundaries, the author is expected to improve and revised this discussion and learn more insight about the religious rules that are being discussed in this article
See my comments for the author.
6.
Tables, Charts, Figures and
Graphics (Optional)
Comment:
None
Suggestion:
7. Conclusion
Comment:
The conclusion is brief and accurately summarizes the paper. The paper also contains a Recommendation that the Constitutional Court should undertake a joint effort with other organs of the state to ensure that the Court’s decisions are enforced. This raises a matter that was not developed in the paper.
Suggestion: Any recommendation included with the should be based on an analysis of issues discussed in the body of the paper.
Any recommendation included with the should be based on an analysis of issues discussed in the body of the paper.
8. Footnotes and Reference
Comment:
None
Suggestion:
B. Notes for the author(s)
The author states as the first research question, “how [can] Islamic Constitutionalism … be implemented through [the] Indonesian Constitutional Court?” Thus, the issue posed by the author is not a normative question whether the Court should establish Islamic constitutionalism. The issue is also not framed in terms of whether it is possible for the Court to create an Islamic system. (That question is adverted to in two sentences in the abstract but is not developed in the paper.) Instead, the paper takes as its starting point an assumption that the Court is in fact intent on establishing an Islamic system and that it is within the power of the Court to do so. The discussion then focuses exclusively on illustrating the working out of the process that the author has assumed to be occurring, i.e., the implementation of a system of Islamic constitutionalism. The author does this by summarizing decisions by the Constitutional Court that are considered to implement the Maqasid Sharia.
The second research question is, “what … types of Indonesian Constitutional Court judgments [have] been indicated as Islamic Constitutionalism?” This issue is not addressed directly in the paper;
the author does not undertake an analysis of whether particular decisions by the Court could be considered to implement Islamic constitutionalism. The paper’s implicit answer to the question is that any decision that promotes one of the seven Maqasid Sharia implements Islamic constitutionalism.
The paper is framed in terms of the theoretical construct of “Islamic constitutionalism.” There is a substantial scholarly literature addressing what Islamic constitutionalism might mean. The author does not discuss this literature but asserts without analysis that Islamic constitutionalism is a system that implements the purposes of Islamic law. This seems like a defensible definition of the concept, but the author’s conception of Islamic constitutionalism needs to be elaborated and related to existing scholarship on the subject.
The author defines Islamic constitutionalism as a system that implements the values of Maqasid Sharia or the purposes of Islamic law. The way that concept is applied in the paper, however, reflects an understanding of Islamic constitutionalism so broad and general that almost any
constitutional system would qualify. The paper includes discussions of decisions by the Constitutional Court that are said to demonstrate the Court’s promotion of the values of offspring and property. The meaning of these values is not explained, and the author does not seek to define a distinctively Islamic conception of offspring or property. Furthermore, the decisions that purportedly implement Islamic constitutionalism conceive the values of offspring and property so broadly that virtually any constitutional system could be said to qualify as Islamic. The cases discussed in the section on
protection of offspring include a case in which the Court held the provision of the Marriage Law fixing a minimum marriage age for girls at 16 to be conditionally unconstitutional and case in which the Court rejected a challenge to an article of the Child Protection law prohibiting economic exploitation of children. The author states that, “Child protection in the perspective of Islamic constitutionalism means the fulfillment of children’s rights and protection from things that can harm them.” There are many decisions by the US Supreme Court that could be said to provide these types of protections for children, yet no one would suggest that the US Supreme Court is implementing a system of Islamic constitutionalism. For the author’s analysis to have any significance, it would need to be
demonstrated that the Constitutional Court’s decisions promote a distinctively Islamic conception of offspring, property, etc.
Feburary 7, 2022 (Full Name) Mark Cammack
Review Form Page 5
C. Decision
Final Decision: Based on your review, please mark the following decision
Accepted
Accepted with revision and the manuscript will not be checked by the reviewer again
Accepted with revision but further review from the reviewer is needed x Rejected
Signature Month and Date, Year
The author’s discussions of the decisions of the Constitutional Court contain a range of details that seem unrelated to the point the author is seeking to make. The discussion of the Court’s Article 33 cases includes detailed descriptions of the intricacies of the Mining law and the Oil and Gas law whose relevance is not clear. To make an argument that the Constitutional Court is implementing a system of Islamic constitutionalism, the author needs to define a conception of the values of an Islamic system that are distinctively Islamic, and then demonstrate how the decisions by the Court promote those uniquely Islamic values. The analysis should focus only on those aspects of the decisions that reflect an Islamic conception of the values.
Editorial Office:
Center of Research and Case Study The Constitutional Court of the Republic of Indonesia
Jl. Medan Merdeka Barat No. 6 Jakarta 10110 Phone: (62-21) 23529000, Fax (62-21) 3520177 Website: http://ejournal.mahkamahkonstitusi.go.id E-mail: [email protected]
ISSN: 2460-0016 e-ISSN: 2548-3870
