Misreading the Court Decision: Reflecting on Constitutional Interpretation In Nusantara Capital Law Formation

The essay examines in detail the Constitutional Court's decision of 10 January 1998. The Government had addressed the Constitutional Court in pursuit of an answer to the question of whether it had to resign after the new President was elected. As it could not address the Constitutional Court with that issue directly, it questioned the constitutionality of the Seimas resolution (10 December 1996) approving the Government's program for a period allegedly extending long after the presidential elections.It is shown that the issue investigated by the Constitutional Court was not only a legal but also a political question. Political questions are brought before constitutional courts in all legal traditions. The Supreme Court of the United States has developed a thorough (however contradictory) political question doctrine. This doctrine allows avoiding delegitimation of the Court's decisions in the eyes of public opinion, the media, etc. In the countries belonging to the European tradition of constitutional review, political questions usually do not form a distinct limiting doctrine. Nevertheless, in many Central and Eastern European countries such doctrines are allowed by their constitutions, stating that (constitutional) courts decide only questions of law. In Lithuania, it is established by the Constitution and reiterated by the Law on the Constitutional Court. In 1993-1996, the Constitutional Court had developed rudiments of political question doctrine, however not as a distinct one but as several separate limiting doctrines (those of standing, statute of limitations, sources of law, gaps in law, etc.). The decision of 10 January 1998 marks the radical turn to the direction of the positive political question doctrine.The Constitutional Court stated that the Government's program was a legal document, and that it was approved for a period of four years. In the article, it is proved that the program is a political document (however having legal significance), and that the four years period is the longest period for which the Government may function, although the Constitution foresees many instances in which this period may be shorter (resignation, vote of non-confidence, etc.).It was interpreted that, after the presidential elections, the Government (cabinet) was bound by the Constitution not to resign but only to "return" its powers (authorization) to the new President who, in his turn, had no right to propose to the Parliament for approval a candidacy of the Prime Minister other than the previous one. Thus, "returning" of powers was considered a version of the French Third Republic's demission de courtoisie. Reliance on the doubtful legal transplants in constitutional interpretation is seen as one of the principal weaknesses of the Constitutional Court's interpretation of the Constitution. It is demonstrated in the essay that the Constitutional Court's decision is not considered legitimate (however lawful) neither by lawyers' professional corporation nor by public opinion, and the reasons for that are supported by thorough analysis of the dicta. Moreover, the analysis of subtle wording of the new President's decrees allows foreseeing the tendency of delegitimation of dicta in the political process.

This research aims to explore the influence of the Constitutional Court (MK) decision on the President's authority in the formation of Government Regulations in Lieu of Laws (Perppu). In the Indonesian constitutional system, Perppu is a legal instrument used by the President to deal with emergencies that require immediate handling, but this authority often gives rise to debate regarding the limits and conditions for its issuance. MK decisions have a crucial role in interpreting and establishing constitutional parameters for the use of this authority, so this research highlights how MK decisions influence the practice of forming Perppu by the President. This research uses normative juridical methods with a conceptual approach and analysis of relevant Constitutional Court decisions, including case studies of decisions that confirm emergency criteria and procedures for issuing Perppu. The findings of this research reveal that the Constitutional Court's decision has strengthened the principle of checks and balances between the executive and legislative branches, by setting stricter limits regarding the conditions that justify the issuance of a Perppu. Apart from that, the Constitutional Court's decision also emphasized the importance of openness and public participation in the Perppu formation process, as an effort to maintain legal accountability and legitimacy in the midst of an emergency situation. Furthermore, this research shows that the Constitutional Court's decision not only limits the President's authority, but also provides clearer guidance regarding the implementation of the Perppu so that it is in line with constitutional values ??and human rights. In the long term, the Constitutional Court's decisions have the potential to encourage reform in the legal regulatory system, by improving the quality of emergency legislation and strengthening protection of democratic principles. Therefore, this research concludes that the Constitutional Court's decision has a significant impact in ensuring that the President's authority in forming Perppu is used proportionally, appropriately, and in accordance with applicable constitutional provisions. Keywords: Constitutional Court Decision, Presidential Authority, Perppu, Constitution, Democracy, Accountability.

The legal consequence of this decision was that the Constitutional Court granted the lawmakers a two-year period to amend the Job Creation Law, following a process that adheres to a clear, standardized, and established method for creating omnibus laws. The Constitutional Court's Decision No. 91/PUU-XVIII/2020 was subsequently followed by the government issuing Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation, which contains similar content to the Job Creation Law. This has sparked controversy within the public. Therefore, the issue that will be further examined in this research is how the creation of the Job Creation Government Regulation In lieu of Law complies with the Constitutional Court's Decision No. 91/PUU-XVIII/2020, which declared the law conditionally unconstitutional, and how the harmonization between the Job Creation Government Regulation In lieu of Law and the legal reasoning in the Constitutional Court's decision is achieved. The research method used in this study is a normative juridical approach, which emphasizes library research. This study is descriptive-analytical, with the research stages focusing on secondary data analysis. Data collection techniques include library research and field research through interviews with relevant parties. The results of the study show that the lawmakers did not comply with the Constitutional Court's Decision No. 91/PUU-XVIII/2020, as they did not amend the Job Creation Law as required by the decision. Instead, they chose to issue the Job Creation Government Regulation In lieu of Law. Regarding the harmonization between the Job Creation Government Regulation In lieu of Law and the legal reasoning in the Constitutional Court's Decision No. 91/PUU-XVIII/2020, a lack of harmonization between the two was found.

The conception of state of law holds the principles of human rights protection and independent as well as unbiased justice in its implementation. The Constitutional Court has a significant role in reviewing constitutionality under the constitution as stipulated in Article 24C paragraph (1) of the Constitution. The Constitutional Court's functions result in final, binding decisions. Judges play a crucial role in implementing impartiality and upholding laws in society. This notion corresponds to Article 5 paragraph (1) of the Law of Judicial Power and the theory of progressive law which view that laws are established for human life. The objectives of this article is: (i) pinpoint the functions of the Constitutional Court in reviewing the Law of Civil Administration; and (ii) uncover the implications of the Constitutional Court Decision Number 97/PUU-XIV/2016. The writer used a normative legal research. The results indicate that (i) in reviewing the Law of Civil Administration the Constitutional Court serves its functions as a constitutional guard, constitutional interpreter, human rights protector, and democracy protector. First, in reviewing a quo law the judges’ considerations are based on the 1945 Constitution as the realization of upholding the constitution. Second, as a constitutional interpreter, the judges interpret religions and beliefs are an integral entity. Third, granting the request of reviewing a quo law is considered as a concrete manifestation of fulfilling and protecting human rights, in this case native-faith followers. Fourth, the request granted provides a clear pathway for acknowledging the identity of native-faith followers so that they can freely practise their faith. (ii) The decision of a quo has massive implications for society and leads to the establishment of laws as a tool of social engineering. Recognizing native-faith followers in civil administration establishes a new norm, ensuring their rights are implemented and fulfilled. KEYWORDS: State of Law, Constitutional Court Decision, and Native Faith.

This research explores the constitutional dynamics surrounding the judicial review of Law Number 7 of 2017 concerning General Elections and the dissenting opinions in Constitutional Court Decision Number 90/PUU-XXI/2023. The petition challenged the constitutionality of presidential candidacy requirements, arguing that certain provisions limited democratic participation. The Constitutional Court partially granted the petition by allowing regional heads under 40 to run, prompting four justices to issue dissenting opinions. They contended that the Court exceeded its mandate by acting as a positive legislator, thereby risking violations of legal certainty and the separation of powers. Using a normative legal method, this study examines constitutional texts, statutory law, court rulings, and academic literature to analyze both the judicial reasoning behind the majority decision and the legal logic of the dissenting opinions. The findings suggest that while constitutional interpretation must adapt to democratic demands, it must remain within the framework of the Constitution. Dissenting opinions, though not binding, serve as a vital check on judicial activism and reinforce the legitimacy of constitutional adjudication in Indonesia’s legal system.

This article aims to analyze changes to the decision of the constitutional court in the 2024 general election contestation from the perspective of Indonesian constitutional law. This research uses a normative juridical research method with a type of approach, namely a statutory approach and a conceptual approach. The legal materials used are primary, secondary and tertiary legal materials, obtained by conducting literature studies. The research results show that factors that influence changes in the Constitutional Court's decisions will be taken into account, such as legal developments, social changes and political shifts that may occur over time. Through a review of constitutional law, this article will also consider the influence of constitutionalist thinking and human rights principles in the Constitutional Court's decisions regarding elections. This research pays attention to changes in the constitutional interpretation by the Constitutional Court and their impact on the electoral process.

The normative contradiction between Supreme Court Decision Number 23 P/HUM/2024, which raised the age limit for regional head candidates, and Constitutional Court Decision Number 70/PUU-XXII/2024, which precisely nullified the norm regarding the minimum age limit, creates legal uncertainty and potential serious implications for the organization of the Regional Head Elections (Pilkada). This research employs a descriptive analytical method with a normative juridical approach to analyze the legal validity of Supreme Court Decision No. 23 P/HUM/2024 in relation to Constitutional Court Decision No. 70/PUU-XXII/2024 concerning the age limit for candidacy in the 2024 National Simultaneous Regional Head Elections. This approach primarily focuses on the study of library legal materials (secondary sources), which include primary legal materials such as the 1945 Constitution, laws pertaining to the Supreme Court and Constitutional Court, and relevant Supreme Court and Constitutional Court decisions. It also incorporates secondary legal materials in the form of legal scholars' opinions. Data collection was carried out through a literature review (document study), supplemented by limited field study, and analyzed using a qualitative juridical method to formulate answers to the existing legal issues. The research findings indicate that the Supreme Court's (MA) decision regarding the age limit for candidacy registration in the 2024 National Simultaneous Regional Head Elections (Pilkada) lacks binding legal force and there's no legal basis for the MA to review provisions stipulated by Law No. 10/2016 concerning Pilkada. In this instance, the MA has exceeded its authority. Consequently, the legal validity of the MA's decision, in light of the Constitutional Court's (MK) decision on the age limit for Pilkada candidacy registration, is deemed legally invalid under applicable laws and regulations. Therefore, with the MA's decision being invalid, the Constitutional Court's decision is the one that prevails.

Fundamental changes in the 1945 is the amendment of Article 1 paragraph (2) as follows: "Sovereignty belongs to the people and carried out according to the Constitution". Change the 1945 Constitution has given rise to the Constitutional Court. By the Constitutional Court, the constitution guaranteed as the supreme law that can be enforced as it should. The Constitutional Court in its development, it is feared will be the agency that has authority super body.Particularly in resolving the matter related to its authority, the Constitutional Court can unilaterally interpret the Constitution without being questioned, other than that produced the Constitutional Court ruling is final and binding, so that when there is one party who feels aggrieved by the decision of the Constitutional Court cannot make the effort for other law.From the approach used in this study is normative juridical, because the study was conducted by examining library materials or secondary data relating to the status and authority of the Constitutional Court in constitutional legal system of Indonesia. Specifications of this research is descriptive analysis, which is expected to give a detailed overview, systematic, and comprehensive on all matters relating to the object to be examined. The data used in this study is secondary data, it means the data obtained from library materials collected through the study of literature and documentary studies, which are then analyzed qualitatively. The conclusion of this study is that the formation of the Constitutional Court in Indonesia is inseparable from the development of judicial review occurring in several countries in the world, especially during the implementation of judicial review which was pioneered by John Marshall in Marbury versus Madison case.Thinking about the importance of the Constitutional Court in Indonesia has emerged during the discussion of the draft Constitution in BPUPKI, then the idea of judicial review of the need to re-emerge during the discussion draft Judicial Power Act (Act No. 14 of 1970). At the time of the discussion of the 1945 changes in the era reformation, the opinion of the importance of the Constitutional Court appeared. Ultimately, the Third Amendment to the 1945 to be of the Constitutional Court, which serves as the guardian of the Constitution and constitutional interpretation.

Constitutional Court Decision Number 60/PUU-XXII/2024 provides a new interpretation of the provisions on the threshold for nominating regional heads in Article 40 paragraph (3) of Law Number 10 of 2016, which previously limited non-parliamentary political parties from nominating regional head candidates even though they obtained valid votes. This study aims to analyze the normative correction from a legal perspective. This study uses a juridical-normative and qualitative-contextual approach with a library research method through an analysis of the Constitutional Court's decision, the principles of legal principles, and constitutional law literature. The results of the study show that the Constitutional Court's decision eliminates forms of electoral discrimination by restoring the rights of political parties that obtain 25% of valid votes to continue to nominate regional head candidate pairs, even without DPRD seats. In a legal perspective, this constitutional interpretation is in line with the principles of justice (al-adl), political equality (al-musawah), and public welfare (al-maslahah al-'ammah). This decision is considered as a form of ijtihad siyasiy by state institutions to free political access from the domination of local oligarchy. Thus, the constitution and Islamic principles can synergize in encouraging substantive democracy at the local level.

Since the World War, international cooperation has been made to preserve the peace and interests of the human community, and representative results include the creation of international organizations and the establishment of international human rights treaties and norms(conventions). In particular, as the issue of human rights protection is recognized as a significant governmental matter, each country is striving to find a means to secure the legal effectiveness of international human rights norms within the country. However, given that the contents of international human rights norms are generally similar to the contents of the constitutional basic rights of the countries that accepted them, it has been discussed that it is necessary to incorporate international human rights norms into the Constitution and recognize the same effect as the Constitution (or constitutional basic rights). However, there is a counterargument that the constitutionalization of international human rights norms cannot be evaluated as desirable because it could undermine the foundation of the national legal system and people’s sovereignty. In addition, it may be questioned whether the constitutionalization of international human rights norms must be premised in securing the legal effectiveness of international human rights norms and their usefulness in constitutional adjudication. This article, focusing on the actual cases of the Constitutional Court of Korea, reviewed what legal and systematic status the Constitutional Court has recognized in international human rights norms and how they have been used in actual adjudication. According to this review, it seems the Constitutional Court sometimes directly used international human rights norms as constitutional norms(standard of review), but a close analysis of related decisions shows that the Court does not use international human rights norms as a direct criterion for constitutional adjudication and uses them as supplementary material for interpreting constitutional basic rights and principles. In particular, the Constitutional Court shows a pragmatical attitude of using it as a supplementary material for constitutional interpretation without judging the legal status of international human rights norms. The Constitutional Court's strategy of using international human rights norms as significant material for constitutional adjudication without shaking the legal system is a dynamic constitutional interpretation process that can localize the universal content of international human rights norms while maintaining the public autonomy of members of the legal community. Through this, international human rights norms will be able to secure a balance of universality and locality, legitimacy and effectiveness, abstraction and specificity, moral legitimacy and democratic-political legitimacy. However, the Constitutional Court is generally considered passive in using international human rights norms in constitutional interpretation, and, in reality, only a few international human rights norms are used, and furthermore, there is no in-depth argument for justification of use of international human rights norms in cases, so it is confirmed that international human rights norms are used superficially and decoratively. In order to improve this, it is necessary to consider preparing a system or practice that actively refers to and properly considers international human rights norms in constitutional adjudication. Above all, it is necessary to fully review related international human rights norms and discussions in the process of constitutional interpretation and establish a faithful method of argumentation of connection and integration that ultimately converts discussions of international human rights norms into constitutional discourse.

The Application of New Article 33, Section 4 of Indonesia's Constitution to Indonesia's Upstream Oil and Gas Legal Framework

The State of Constitutional Theory in U.S. Law Schools in the 2000s Mark Tushnet (bio) For a period running from the late 1960s to the early 1990s, constitutional theory in U.S. law schools dealt almost entirely with constitutional interpretation by the courts. Legal scholars' obsession with interpretive theory arose from the political circumstances of their scholarship. Conservative legal activists cast their challenge to the Warren Court's liberal decisions not (simply) in terms of disagreement with the results, but in terms of the illegitimacy of the interpretive techniques the Warren Court used. According to conservatives, the only method of constitutional interpretation that could confer legitimacy on the Court's decisions was one that focused almost entirely on the original meaning or understanding of the Constitution's words.1 The Warren Court (and then the Burger Court, to their dismay) did not follow the conservatives' prescription. Liberal constitutional theorists developed two responses to the conservative challenge.2 First, they directly took originalism on. One popular argument was that originalists could not provide a decent account of how the understandings held by individuals were aggregated into a single understanding that later courts could apply. Another was that originalist examinations of particular provisions were typically extremely simple-minded, of a sort derided by historians as "law office history." The liberals were attracted to the argument that serious examination of the framing era disclosed an extremely complicated intellectual universe, riven by serious conceptual disagreements that went to the proper understanding of particular constitutional provisions. In light of those disagreements, liberals said, there simply was no original understanding that later courts could apply. A third popular response to conservative originalism emphasized the impossibility of directly applying original understandings to changed circumstances. Instead, liberals argued, courts today should invoke the values that underlay the Constitution's provisions to see how contemporary statutes measured up against those values. The liberals' second response to conservative originalism was to develop alternative interpretive approaches that, they argued, made judicial decisions legitimate. Two such approaches were particularly attractive. The first was John Hart Ely's revival and rearticulation of the "Carolene Products footnote 4" approach. Under that approach, courts were to identify and rectify obstructions in the processes of democratic representation, and then stand aside. According to Ely, this approach reconciled vigorous judicial review — within its proper domain — with democratic self-governance, by using the courts to purify the processes of democratic representation without supervising the outcome of truly democratic processes. The second popular approach was Ronald Dworkin's invocation of moral and political philosophy to interpret the Constitution's rights-protecting provisions, which, after all, did use terms familiar to philosophers. The disputes between the liberals and the conservatives became increasingly arcane. Conservatives acknowledged that some constitutional provisions were understood when adopted to refer to somewhat abstract rights, but criticized liberals for manipulating the level of generality on which they interpreted those provisions and rights. They modified their position to deal with the problem of aggregation, but claimed that revised originalist approaches remained plausible. Liberals acknowledged that American political traditions required recourse to some sort of originalism to justify judicial interpretations, but insisted that such recourse need not be as rigid as conservatives insisted. Eventually the fights over originalism petered out in the law schools, though they remained important in the rhetoric of conservative political activists who focused on the courts. Conservatives discovered that the Rehnquist Court did well enough by their lights without adopting a purely originalist approach, and indeed did so by deploying some of the techniques conservatives criticized when liberals used them.3 The legal academy generally concluded that there was something wrong with an analysis that led to the conclusion that essentially all of the Supreme Court's work in the twentieth century, if not before, was somehow illegitimate. It was hard to say that the Court's decisions lacked democratic legitimacy in a world where the Court's decisions were routinely endorsed by the American public. In the end, constitutional theorizing in U.S. law schools about constitutional interpretation ended with the acknowledgement that the Court in fact deployed a number of interpretive approaches, and properly so. Originalism of some sort — at least...

Judges served in constitutional court have freedom to utilize and elaborate constitutional interpretation method used to examine the law of the Constitution of the Republic of Indonesia year 1945 in accordance to their own understanding. Not only that the constitutional interpretation was not regulated in positive law, judges also have independency in making new law discovery (rechtsvinding). Therefore, the interpretation method used by judges in the constitution court is basically determined by each case displayed at the moment. It means that the future of constitutional interpretation regulated by the judges in constitutional court is depending on the lawsuit reported in judicial review. On the other hand, constitutional interpretation on natural resource has to be based on original (originalist) interpretation rooted by original intent or text stated in the constitution of the republic of Indonesia year 1945, along with document of disagreement on its formulation (memorie van toelichting). Original interpretation is aimed at avoiding the shift at the origin of substantial intention of natural resources management. Nevertheless, non originalis interpretation will remain usable, but it is limited only for technical level, so that natural resources management will stay updated while keeping the basic foundation of natural resources management as firmly stated in constitution.

Norms are behavioral guidelines in the Indonesian legal state. Norms continue to exist in the legislation and juridical consequences of constitutional court decisions, and in particular, that of the Constitutional Court. Legal norms have principles that are applied to a wider hierarchy of legal norms and the production of legislation. In essence, the Constitutional Court's rulings have consequences on the actions of the government and therefore the action of governance. Including decision norms in the Constitutional Court's ruling has juridical consequences for the hierarchy of regulations and state legal actions in carrying out the function of government. This article aims to find out how to apply decision norms if there an identical or related decision exists within a different judicial institution. In government institutions bound by the Constitutional Court's decisions, application of decision norms resulted in chaos for the application and enforcement of the law. The implementing agency is faced with the same legal product, namely a verdict in another judicial institution. This causes no legal certainty. Rather than a solution or outcome, implementing agencies are faced with an identical legal response yet no legal certainty. The absence of legal certainty has consequences for government institutions that are bound by the Constitutional Court's decision. By utilizing a hierarchy of legal norms, the issue of rigidity and uncertainty caused by decision norms can be resolved. Likewise, in the legislature, the Constitutional Court's decision is the source of making legal norms. As the Constitutional Court’s decision is the source of legal norm production in the legislature, espousing a hierarchy of legal norms will enable laws and regulations that are formed to reflect justice, certainty and benefit.
 Keywords: Court Decision, Legal Norms, Government.

This research discusses the Constitutional Court Decision Number 90/PUU-XXI/2023 regarding the minimum age requirement for presidential and vice-presidential candidates as stipulated in Article 169 letter q of Law Number 7 of 2017 concerning General Elections. In that decision, the Constitutional Court ruled that the age limit of 40 years remains in effect, but with an exception for candidates who are not yet 40 years old but have previously or are currently serving as regional heads. This research employs a normative juridical method with legislative and conceptual approaches, analyzing primary legal materials such as the 1945 Constitution, Election Law, and Constitutional Court decisions, supported by secondary legal materials from academic literature and journals. The research findings indicate that the Constitutional Court's considerations are based on the principles of citizens' constitutional rights, open legal policy, and the idea of leadership experience as an alternative age requirement. This decision has positive implications, including opportunities for leadership regeneration and increased political participation by young people, but it also draws criticism for its potential to discriminate against non-regional leaders and create political suspicion. Therefore, a revision of the Election Law is needed to clarify the legal norms resulting from the Constitutional Court's decision so that it does not lead to multiple interpretations and maintains the principle of equality. This research concludes that the Constitutional Court's decision is an opportunity to strengthen democracy, but also a challenge in ensuring constitutional justice in Indonesia.