Procedural Review: A Path Forward for Controversial Issue?

• Date: 01 October 2022

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2021 e Institute for Migrant Rights Press

proCEdural rEviEw

A PAth ForwArd For controverSiAl iSSUeS?

Ignatius Yordan Nugraha

Centre for Government and Law (CORe)

Faculty of Law, Hasselt University

E-mail: yordan.nugraha@uhasselt.be

One of the world’s leading legal theorists, Jeremy Waldron, wrote in

1999 that “[t]here are many of us, and we disagree about justice. at

is, we not only disagree about the existence of God and the meaning

of life; we disagree also about what count as fair terms of co-operation

among people who disagree about the existence of God and the mean-

ing of life.”1 More than two decades later, this statement still holds true,

even in the so-called “Western World.” Judge Krzysztof Wojtyczek of

the European Court of Human Rights wrote in 2023, in the context of

legal recognition of same-sex couples, that “Europeans are also very

divided on fundamental anthropological and moral ideas constituting

the foundation of human rights, and the divergence in this domain has

tended to grow in the last few decades.”2

Long story short, disagreement about justice is a feature of our

society. In this context, how should courts address controversial issues

where no clear solution is to be found? Should judges openly side with

one side of the controversy, and review the law based on their own

normative belief? With regard to LGBT rights, for instance, should

secular humanist judges quash laws that criminalise homosexual

acts in order to protect the right to private life and the right to non-

discrimination of homosexuals? But what if the society where the

court operates does not approve of homosexuality? Should the judges

1. J W, L  D 1 (1999).

2. Fedotova and Others v Russia App nos. 40792/10, 30538/14 and 43439/14 (ECtHR, 17

January 2023), Dissenting Opinion of Judge Wojtyczek para. 2.3.