Publication Search

This study aims to analyze the regulation and implementation of the authority to test laws and regulations (judicial review) in the Indonesian state system based on the 1945 Constitution of the Republic of Indonesia. This study applies a normative juridical method using three main approaches, namely the statute approach, the conceptual approach, and the historical approach. The legal data collected includes primary, secondary, and tertiary legal materials, which are then reviewed through qualitative analysis. The results of the study show that normatively the division of judicial review authority between the Supreme Court and the Constitutional Court has been expressly regulated in Article 24A paragraph (1) and Article 24C paragraph (1) of the 1945 Constitution of the Republic of Indonesia. The Supreme Court is given the authority to test regulations under the law against the law, and the Constitutional Court is given the authority to test laws against the 1945 Constitution. This division of authority is a manifestation of the principle of separation of powers and the mechanism of checks and balances after the third amendment to the 1945 Constitution. However, in practice, this two-roof judicial review system tends to give rise to conceptual and practical problems, such as overlapping authority and differences in decisions between the Supreme Court and the Constitutional Court which have the potential to create legal uncertainty and reduce public trust in the judicial institution. Therefore, it is necessary to reorganize the authority of judicial review by strengthening coordination between institutions or unifying the authority of judicial review which is centered on one institution only in order to guarantee legal certainty, harmonization of norms, and supremacy of the constitution in the Indonesian state system.  

The doctrine of open legal policy is a jurisprudential construction of the Constitutional Court that provides space for lawmakers to formulate norms as long as they do not contradict the 1945 Constitution of the Republic of Indonesia. Nevertheless, the application of this doctrine in the practice of law testing has raised various constitutional problems, particularly concerning the limits of authority between legislators and the Constitutional Court, as well as the protection of citizens' constitutional rights. This research aims to analyze the concept and construction of open legal policy within the Indonesian constitutional system and to formulate the constitutional limits of its application in Constitutional Court decisions. This research is a normative legal study with an approach based on legislation, a conceptual approach, and a case approach. The legal materials used include the 1945 Constitution, relevant legislation, and pertinent Constitutional Court decisions. The research results indicate that open legal policy cannot be interpreted as absolute freedom for lawmakers, but must be limited by the principle of constitutional supremacy, protection of constitutional rights, and the principle of proportionality as reflected in Article 28J paragraph (2) of the 1945 Constitution. The ambiguity of the parameters for applying this doctrine has the potential to cause inconsistencies in rulings and disrupt legal certainty. Therefore, a more precise and consistent formulation of constitutional limits is necessary to maintain the balance between representative democracy and constitutional oversight.

This study aims to analyze the position of statutory regulations as the main limiting framework for administrative discretion in Indonesian administrative law, particularly after the enactment of Law Number 11 of 2020 on Job Creation. The main issue examined is the normative shift caused by the removal of the requirement that discretion must not contradict statutory regulations, which potentially weakens legal certainty and judicial control. This research uses a normative juridical method with a regulatory and conceptualization approach, and is supported by the theory of discretionary justice, balance of legal objectives, and good governance. The findings indicate that the elimination of formal legality requirements transforms discretion from a legally constrained authority into a broader administrative freedom, increasing the risk of abuse of power and weakening the objective standards of judicial review in administrative courts. The study concludes that such a shift undermines the core principles of the rule of law and necessitates constitutional review to restore legal certainty, accountability, and effective judicial oversight.

This study discusses the position of persons with disabilities, especially those with mental and intellectual disabilities, in carrying out legal actions following the judicial review of Article 433 of the Civil Code through the Constitutional Court Decision Number 93/PUU-XX/2022. Prior to this amendment, Article 433 of the Civil Code used discriminatory terms and automatically placed persons with disabilities under guardianship, thereby eliminating their legal capacity as independent legal subjects. This Constitutional Court decision changed the phrase "must be guarded" to "can be guarded" and emphasized that the placement of guardianship can only be made based on a competent medical diagnosis. The research method used is normative juridical through a statutory approach and court decisions. The results of the study show that the change in norms restores the constitutional rights of persons with disabilities, including the right to autonomy, equality before the law, and protection from discrimination. In addition, this change directly affects the requirements for capacity in making agreements according to Article 1320 of the Civil Code, so that persons with mental disabilities who have the capacity are still considered capable of acting. Therefore, this decision is an important step in realizing a legal system that is more inclusive, just and respects the dignity of people with disabilities.

Penelitian ini dilatarbelakangi oleh munculnya persoalan yuridis dalam pelaksanaan mekanisme Agunan yang Diambil Alih (AYDA) oleh perbankan, terutama terkait validasi Pajak Penghasilan atas Pengalihan Hak atas Tanah dan/atau Bangunan (PPh TB). Kasus BPR RAY memperlihatkan kebuntuan administratif akibat penolakan validasi pajak oleh DJP, yang menimbulkan ketidakpastian hukum dalam penyelamatan kredit bermasalah. Rumusan masalah mencakup: (1) bentuk pertentangan norma antara POJK 33/2018 dan PMK 261/2016; (2) penyebab disharmonisasi norma; dan (3) akibat hukumnya terhadap pelaksanaan AYDA. Penelitian ini bertujuan mengidentifikasi bentuk, penyebab, dan akibat hukum dari disharmonisasi tersebut. Metode yang digunakan ialah yuridis normatif dengan spesifikasi deskriptif-analitis melalui studi pustaka dan wawancara. Hasil penelitian menunjukkan bentuk pertentangan antara PMK 261/2016 yang mengedepankan pendekatan formal kepemilikan dan POJK 33/2018 yang menekankan substansi penguasaan aset. Disharmonisasi ini disebabkan oleh pengambilalihan AYDA secara sukarela, penafsiran subjek pajak penghasilan, serta ketiadaan regulasi penghubung antarregulator. Akibat hukum disharmonisasi ini terjadi di sektor perbankan, perpajakan dan pertanahan. Hasil penelitian kemudian dianalisis menggunakan teori sistem hukum, teori hukum responsif dan teori keadilan distributif. Dari hasil penelitian ini dapat disimpulkan disharmonisasi norma menimbulkan hambatan dalam praktik AYDA dan menimbulkan akibat hukum di berbagai sektor. Di akhir, peneliti memberikan saran akademik mendorong penelitian AYDA yang multi kasus dengan teori hukum yang lebih variative. Untuk saran praktis penelitian ini menegaskan pentingnya harmonisasi antar regulator sehingga pengaturan AYDA tidak saling bertentangan. Beban pajak sebaiknya disesuaikan dengan prinsip keadilan dan kemampuan membayar. BPR maupun masyarakat dapat menempuh judicial review ke Mahkamah Agung untuk menjamin kepastian hukum dan keseragaman tafsir regulasi

Indonesia constitutionally declares itself as a state based on the rule of law as mandated in Article 1 paragraph (3) of the 1945 Constitution after the amendments. This principle requires that governance and law enforcement be conducted under constitutional supremacy, legal certainty, equality before the law, and an independent judiciary. However, various political interferences, regulatory inconsistencies, and discriminatory legal practices continue to undermine these ideals. This research examines: (1) the effectiveness of the hierarchy of legislation and judicial review mechanisms by the Constitutional Court (MK) and the Supreme Court (MA) in preventing regulatory conflicts and discriminatory law enforcement; and (2) the extent to which the rule of law principle post-amendment has been manifested in equal protection before the law and judicial independence. Using a normative legal research method with statute, conceptual, case, and historical approaches, this study finds that although constitutional reforms have strengthened checks and balances and judicial authority, the persistence of selective and politically influenced law enforcement indicates that equality before the law has not been consistently implemented. Strengthening institutional integrity, improving regulatory harmonization, and ensuring the judiciary’s independence remain crucial to realizing Indonesia’s constitutional aspirations as a democratic state governed by the rule of law.

Constitutional Court (MK) “Decision Number 60/PUU-XXII/2024 marks an important shift in the practice of judicial review, whereby the Constitutional Court not only invalidates legal norms, but also establishes new substantive norms in cases involving open legal policy. This action reflects the tendency of positive legislature, which theoretically expands the scope of judicial authority beyond the limits of negative legislature. This study aims to analyse the implications of this ruling on the legislative function of Indonesia Parliament (DPR), particularly in the context of its constitutional responsibility to respond to and accommodate new norms established through court rulings. Using normative legal research methods and a conceptual approach, this study finds that the DPR's suboptimal institutional response to the substance of the ruling indicates serious challenges in harmonising the constitutional system that guarantees the effectiveness of norms, legal certainty, and the principle of checks and balances. This study contributes to proposing a model of inter-institutional coordination or parameters for the judicialisation of norms to ensure the balance of power, as well as criticising and clarifying the boundaries of the roles of each state institution in the context of corrective legislation based on judicial decisions.

The Suspension of Debt Payment Obligations (PKPU) is a rehabilitative mechanism, but it is susceptible to bad faith abuse. This case study examines Homologation Decision No. 62/Pdt.Sus-PKPU/2021/PN Niaga Sby, where judges ratified a composition plan creating a "Previous Trade Creditors" category. This clause, targeting unregistered creditors, effectively resulted in a 95% debt write-off, injuring the Principle of Justice. This research aims to analyze the judges' legal considerations in ratifying this clause and examines their failure to apply material judicial obligations regarding the debtor's bad faith. This research utilizes a normative juridical method with a statute and case study approach. The analysis is qualitative, examining the decision and relevant legislation, supplemented by an interview with a practicing Commercial Court judge. The primary finding is that the judges' considerations were overly positivistic, focusing only on the formal voting quorum (Article 281, UU KPKPU). They failed to execute their imperative duty under Article 285(2)(c) to reject a plan achieved via "dishonest means". The 95% write-off is prima facie bad faith and is punitive, not rehabilitative. The judges misinterpreted the Publicity Principle; non-registration should only cause the loss of voting rights (procedural), not the loss of claim rights (substantive). This failure of material judicial review legitimized the abuse of the PKPU institution.  

This study examines the changes in the authority of the Professional Disciplinary Council (Majelis Disiplin Profesi, MDP) under Law Number 17 of 2023 concerning Health and their implications for legal certainty for medical and health professionals. Although these changes are intended to improve the professional disciplinary system, they have resulted in the centralization of authority under the Ministry of Health, including the appointment of members, institutional formation, and the process of judicial review of MDP decisions. Furthermore, MDP recommendations can now serve as a basis for criminal investigations against medical and health personnel, which contradicts the original function of the MDP as an institution for enforcing ethics and professional discipline based on due process of ethics. This research employs a normative juridical method with a descriptive-analytical and case study approach, supported by expert interviews in health law. Theoretical frameworks used include the Theory of Legal Certainty, the Theory of Human Rights, and the Theory of Legal Protection. Findings indicate that the centralization of authority under the Ministry of Health has created a power imbalance in professional oversight. This has negative implications for legal protection, increasing the risk of conflict of interest, abuse of authority, and weakening legal certainty for medical and health professionals. Therefore, it is necessary to revise Law No. 17 of 2023 and Government Regulation No. 28 of 2024 to restore the independence of the MDP and ensure a proportional redistribution of authority within the health professional oversight system.

This study examines the role of the Constitutional Court of Indonesia (Mahkamah Konstitusi/MK) as a positive legislator through the lens of the living constitution approach, which conceptualizes the constitution as a dynamic and evolving document responding to social and political change. The main problem addressed is the extent to which the MK’s judicial activism in interpreting and even creating new legal norms aligns with constitutional principles, democratic legitimacy, and the balance of powers between the judiciary and the legislature. The objective of the research is to analyze how the MK’s progressive interpretations have transformed it from a negative legislator—which merely annuls unconstitutional laws—into a positive legislator that effectively fills legal gaps and constructs new constitutional meanings. Using a normative juridical method combined with case study analysis, this research explores key constitutional decisions, focusing on cases where the MK extended its interpretive authority beyond mere judicial review. The findings reveal that the MK, through the living constitution approach, justifies its role as a positive legislator by invoking principles of constitutional morality, justice, and responsiveness to societal evolution. However, this judicial creativity also generates tension with legislative supremacy and may risk overstepping the boundaries of judicial function. The synthesis of findings suggests that the MK’s transformation embodies the dynamic interplay between constitutional text and social context, reinforcing the adaptability of Indonesian constitutionalism. The study concludes that while the MK’s position as a positive legislator under the living constitution paradigm strengthens constitutional justice and protects citizens’ rights, it must remain anchored in checks and balances to prevent judicial overreach and preserve democratic legitimacy.

This study evaluates the effectiveness of the Constitutional Court’s authority in reviewing laws and regulations as a means of upholding constitutional supremacy in Indonesia. Employing both normative and empirical legal research methods, it examines the Constitutional Court’s rulings from 2019 to 2024 and assesses their broader implications for the national constitutional system. The findings reveal several structural weaknesses in the review mechanism, particularly related to the enforcement of decisions and the existence of dualism between the Constitutional Court and the Supreme Court in conducting judicial reviews. These shortcomings have created inconsistencies and reduced the optimal impact of the Constitutional Court’s role. To address these issues, the research recommends comprehensive reforms, including the unification of judicial review authority, enhancement of the Constitutional Court’s executorial powers, and expansion of public access to constitutional review procedures. Such measures are expected to strengthen the Court’s role as the guardian of the constitution, improve legal certainty, and support the creation of a more coherent and harmonious legal system in Indonesia.

Restricting judicial review (peninjauan kembali) for state administrative officials through Constitutional Court Decision No. 24/PUU-XXII/2024 represents a pivotal shift in Indonesia’s administrative justice framework. This study critically examines the constitutional, theoretical, and comparative dimensions of that decision, situating it within the principles of equality before the law and due process enshrined in the 1945 Constitution. Employing a normative-qualitative design grounded in doctrinal analysis and comparative law methods, the research analyzes primary sources including the 1945 Constitution, Law No. 5 of 1986 on State Administrative Courts, Law No. 14 of 1985 on the Supreme Court, and the Constitutional Court’s decision and is supplemented by relevant academic literature. Findings reveal that the decision undermines procedural equality by asymmetrically restricting state entities’ access to extraordinary remedy mechanisms without addressing systemic enforcement deficiencies. Comparative analysis with French, German, and Thai administrative law systems demonstrates that modern rechtsstaat states preserve substantive justice through inclusive access to judicial review while enforcing robust procedural safeguards. The study concludes that targeted institutional reforms such as establishing an autonomous executorial agency, enacting contempt-of-court legislation, strengthening ombudsman oversight, and enhancing judicial education offer more constitutionally sound solutions to improve compliance with administrative court rulings. It further underscores the crucial role of rechtsvinding and proportionality in reconciling procedural limitations with constitutional mandates for substantive justice and legal certainty.

Constitutional courts serve as guardians of constitutional supremacy through judicial review mechanisms. This study examines the authority and practices of Indonesia's Constitutional Court in comparative perspective with international best practices. Using comparative legal analysis, this research evaluates judicial review systems in Germany, South Korea, South Africa, and the United States to identify effective governance models. The study reveals that while Indonesia's Constitutional Court possesses comprehensive constitutional review authority, challenges remain in enforcement mechanisms, case backlog management, and institutional independence. International best practices demonstrate the importance of clear jurisdictional boundaries, efficient case processing, and robust enforcement powers. The research concludes that Indonesia can strengthen its constitutional court system by adopting selective best practices including streamlined procedures, enhanced enforcement mechanisms, and improved institutional safeguards while maintaining its unique constitutional framework.

The right to a decent and healthy environment is explicitly guaranteed under Article 28H paragraph (1) of the 1945 Constitution of the Republic of Indonesia. However, in practice, development policies that prioritize economic growth often neglect environmental sustainability and may even compromise the environmental rights of future generations. This article aims to examine the concept of the constitutional rights of future generations to a sustainable environment within the framework of Indonesian constitutional law, and to evaluate the state's responsibilities in achieving sustainable development based on the principle of intergenerational justice. This study employs a normative juridical approach by analyzing constitutional provisions, statutory regulations, legal doctrines, and relevant decisions of the Constitutional Court. In conclusion, the article recommends strengthening the constitutional dimension of environmental protection through environment-based judicial review, reformulating development policies to ensure intergenerational sustainability, and explicitly recognizing the rights of future generations within the Indonesian constitutional legal framework.

The current Indonesian legal system recognizes two paths of judicial review, although this division of authority is constitutionally legal, but in practice it raises serious problems. One of them is the inconsistency of decisions between judicial institutions. For example, there is a Supreme Court decision that cancels Regional Regulations that have previously been studied by the Constitutional Court, causing confusion in the application of the law. This not only weakens the principle of legal certainty, but also raises problems in the effectiveness of the judicial system. This study aims to identify the concept of restructuring the ideal regulatory testing mechanism according to the principle of the state of law and the theory of norm hierarchy and analyze the need for restructuring the regulatory testing mechanism in Indonesia from the perspective of legal certainty, justice, and law enforcement effectiveness. The research method used in this study is normative juridical and uses a legislative approach. The results of the study show.  

Pretrial proceedings play a strategic role in Indonesia's criminal justice system as a judicial oversight mechanism to ensure the legality of law enforcement actions and the protection of suspects’ human rights. In corruption cases, however, pretrial motions are often exploited as procedural loopholes to invalidate ongoing investigations due to the absence of rigid legal standards and inconsistent interpretations by judges sometimes extending into the merits of the case, which should fall outside the scope of pretrial jurisdiction. This study examines the ideal concept of pretrial review using a normative juridical approach, emphasizing the due process of law principle, the primacy of lex specialis under Article 26A of the Anti-Corruption Law, and its harmonization with the Criminal Procedure Code (KUHAP). The research concludes that pretrial mechanisms should function solely as limited judicial review, restricted to evaluating procedural legality. Additionally, the study highlights the significance of establishing Preliminary Examination Judges (Hakim Pemeriksa Pendahuluan) as proposed in the Draft Criminal Procedure Code. These judges would proactively supervise investigative actions, ensuring procedural compliance and minimizing the misuse of pretrial remedies by corruption suspects. Strengthening normative frameworks and judicial guidelines is thus essential to foster coherent, fair rulings and support the integrity and effectiveness of anti-corruption law enforcement.

The scope of pretrial authority is regulated under Article 77 of the Indonesian Criminal Procedure Code (KUHAP), with an extension of authority introduced through the Constitutional Court Decision Number 21/PUU-XII/2014. The evidentiary process in pretrial proceedings is governed by Article 2 paragraphs (2) and (4) of the Supreme Court Regulation of the Republic of Indonesia Number 4 of 2016 concerning the Prohibition of Judicial Review of Pretrial Decisions. However, in practice, petitions for pretrial often address matters beyond this prescribed authority. Moreover, there remains a disparity in judicial reasoning across different judges, particularly with respect to the evaluation of evidence in the determination of a suspect.The legal issues examined in this study are: (1) whether the expansion of the pretrial authority’s scope has led to multiple interpretations among law enforcement officers, and (2) how the evidentiary process in pretrial proceedings aligns with the principle of legal certainty. This thesis employs normative legal research using statutory, conceptual, and case approaches. The findings of this thesis reveal that the expansion of pretrial authority has indeed created multiple interpretations among law enforcement officials, owing to inconsistencies in pretrial decisions that result from judicial discretion. Furthermore, the evidentiary process in pretrial proceedings ought to be limited to the formal aspects of investigative or prosecutorial actions. Nevertheless, certain pretrial rulings have considered the substance and quality of evidence, and even assessed the conduct of the suspect. Such practices undermine legal certainty for justice seekers. Therefore, the Supreme Court should issue more concrete regulations concerning the scope of pretrial and the evidentiary standards applicable in pretrial proceedings.

This article discusses how the independence of the judiciary is based on the Constitutional Court Decision. The obligation of a state of law or rechstaat is the independence of the judiciary. In the concept of Rule of Law and Rechstaat, a state of law is obliged to place a free and impartial judiciary against anyone. The judiciary is also called the broadest possible independence, this is meant as a sign of a good state of law. Independence is usually considered as protection from irresponsible actions. Therefore, in accordance with the mandate of Article 24 paragraph (1) of the 1945 Constitution, it is necessary to explore the roots of the independence of the judiciary. The opinion of the Constitutional Court itself regarding the decisions that make this Article a kind of test for the judicial review carried out by the Constitutional Court which should be properly discussed and raised as an interpretation of the meaning of the independence of the judiciary. This article discusses the judge's perspective on the decision of the Constitutional Court which discusses the independence of the judiciary. The writing of normative juridical uses a conceptual approach and a case approach. Secondary data is used in this article, and the main legal source is the Decision of the Constitutional Court. Data were analyzed using a qualitative approach.

Examination of a criminal case in a judicial process essentially aims to find the material truth, namely the complete truth of a criminal case by applying the provisions of criminal procedural law honestly and in a timely manner with the aim of finding out who the perpetrator is who can be charged with committing something. violation of law. Making a post mortem et repertum gives the full duty to the doctor as an implementer in the field to assist the prosecutor in determining the direction of the charges that will be brought against the defendant, as well as assisting the judge in finding the material truth in deciding the criminal case. This research includes normative legal research, so the legal materials used are primary, secondary and tertiary legal materials. The technique for collecting legal materials that will be used as a source in this research is library research, namely collecting legal materials by reading statutory regulations, official documents, journals, articles from the internet, and other literature that is closely related to The issues discussed are based on secondary legal materials. The presence of the Pretrial Institution provides a warning that law enforcers must be careful in carrying out their legal actions and every legal action must be based on applicable legal provisions, meaning that they must be able to exercise restraint and distance themselves from arbitrary actions. Thus, it is clear that organizing pretrial proceedings is not an easy task considering that the activities of one law enforcement agency to assess and test the work patterns of other law enforcement agencies is definitely work that must be carried out carefully and mastering all law enforcement mechanisms. The judiciary in Indonesia, one of whose tasks is to examine laws against the constitution, is what we often call judicial review. This judicial review is carried out to protect the rights of citizens who feel disadvantaged by the enactment of a law. In this case, what concerns the author is the judicial review of article 77 of the Criminal Procedure Code, which in this article is felt to be detrimental to someone who is designated as a suspect by investigators, because the article does not regulate the determination of suspects as pre-trial objects.

On February 17, 2012, the Constitutional Court granted the lawsuit filed by Hj. Aisyah Mochtar who filed a judicial review of Article 34 Paragraph (1) of Law Number 1 of 1974 concerning Marriage. This lawsuit arose from her marriage to Moerdiono in accordance with Islam which was not officially registered, which gave birth to a son, Iqbal Ramadhan. The Constitutional Court's decision changed the status of illegitimate children, who previously only had a civil relationship with the mother, now also have a civil relationship with the father and the father's family. This decision applies not only to children born from unregistered marriages, but also to children from relationships between men and women without the bonds of marriage which can be proven through technology such as DNA testing. These children are entitled to civil rights protection, such as maintenance and education, but are not related to guardianship issues. In its considerations, the Constitutional Court emphasized that the law must provide fair protection and legal certainty for the status of children, including those born even though their marriage is still disputed. Eliminating discrimination against illegitimate children aims to provide positive value for the future of children. The obligation of alimony that was previously only borne by the mother, is now shared with the father who can be proven to have a blood relationship with the child. If the father neglects to fulfill his obligations, he can be sued in court. The next question is how the Constitutional Court Decision will be implemented regarding the recognition of the lineage of children born outside of legal marriage.