Reformulation of Judicial Principles in Judicial Review Cases Based on Open Legal Policy by the Constitutional Court
DOI:
https://doi.org/10.64780/rolsj.v2i1.213Keywords:
judicial activism, judicial review, open legal policy, Constitutional Court, constitutional lawAbstract
Background:In Indonesia's constitutional system, the Constitutional Court has the authority to review laws against the 1945 Constitution to ensure constitutional supremacy and protect citizens' constitutional rights. In practice, the Constitutional Court not only acts as a negative legislature, invalidating legal norms, but also, in some decisions, acts as a positive legislature through the application of the principle of judicial activism. However, the application of this principle often generates debate, particularly when it relates to norms of an open legal policy nature, which are essentially within the authority of the lawmakers.
Aims:This study aims to analyze the application of the principle of judicial activism by the Constitutional Court in cases of judicial review of laws related to the norm of open legal policy, and to examine the consistency of its application in constitutional judicial practice in Indonesia.
Methods:This study employs a juridical-normative research method with a case approach, a conceptual approach, and a comparative approach. Data were obtained through a literature review, encompassing primary legal materials in the form of legislation and Constitutional Court decisions, as well as secondary legal materials in the form of academic literature and legal doctrine. Data analysis was conducted qualitatively through a content analysis of Constitutional Court decisions related to the application of the principle of judicial activism.
Result:The research results show that the Constitutional Court has applied the principle of judicial activism in several of its decisions by formulating or adding new legal norms during the judicial review process. However, this principle has not been consistently applied, particularly in cases related to open legal policy norms. In some decisions, the Constitutional Court has refused to review these norms, arguing that this falls within the authority of the legislators, while in other decisions, the Constitutional Court has intervened in norms that constitute open legal policy.
Conclusion:This study concludes that the Constitutional Court's application of the principle of judicial activism still requires clearer parameters to avoid inconsistencies in its judicial review practices. Such clarity is crucial for maintaining a balance of power between the judiciary and the legislature and strengthening the Constitutional Court's role as a guardian of the constitution in a democratic state governed by the rule of law.
References
Adnan, IM, Ridwan, R., Siregar, VA, & Mubarik, M. (2022). Dynamics of the Rule of Law in the Pancasila Democracy System in Indonesia. Multidisciplinary Madani Journal (MUDIMA), 2(3), 1121–1138.
Agustine, OV, Harijanti, SD, Perwira, I., & Wulandari, W. (2023). Constitutional review of criminal norms: Does Indonesia need judicial activism? The International Journal of Human Rights, 27(4), 772–788. https://doi.org/10.1080/13642987.2023.2185608
Alatas, A., Zulfickar, F., & Hutabarat, PAN (2024). The Theory of Public Interest as a Limitation of Judicial Activism in the Judicial Review of Laws by the Constitutional Court. Journal of Constitution & Democracy, 4(2). https://doi.org/10.7454/JKD.v4i2.1409
Andiraharja, DG (2021). Judicial Review by the Constitutional Court as a Constitutional Adjudication Function in Indonesia. Khazanah Hukum, 3(2), 70–79. https://doi.org/10.15575/kh.v3i2.9012
Ari, EA, Jiwantara, FA, Koynja, J., Imalah, & Sony, E. (2024). The Role of the Constitutional Court in Resolving Regional Election Disputes in Indonesia: Collaborative Journal of Science, 7(12), 4790–4794. https://doi.org/10.56338/jks.v7i12.6657
Asadi, S., & Sukurman. (2024). The Supremacy of Law in a Constitutional Framework: A Critical Study of the Implementation of the Principles of the Rule of Law in the Reform Era. SEIKAT: Journal of Social, Political, and Legal Sciences, 3(4), 208–215. https://doi.org/10.55681/seikat.v3i4.1519
Ilham, M. (2024). The Constitutional Court in Upholding Constitutional Justice in the Modern Era. Legal Standing: Journal of Legal Studies, 8(2), 467–479. https://doi.org/10.24269/ls.v8i2.9643
Kansil, CST, & Nadilatasya, PM (2024). The Impact of Constitutional Court Decisions on Political Dynamics and Public Trust in Indonesia: An Analysis of Legal and Ethical Implications. UNES Law Review, 6(4), 10753–10760. https://doi.org/10.31933/unesrev.v6i4.2039
Mawardi, Mungawanah, N., Taufiq, M., Lubis, AF, & Jaya, K. (2025). Legal Analysis of the Role of the Constitutional Court in Judicial Review of Legislation: Collaborative Journal of Science, 8(2), 1257–1263. https://doi.org/10.56338/jks.v8i2.7141
Muhammad, R. (2025). The Role and Problems of the Constitutional Court as a Positive Legislature Amidst Indonesia's Democratic Regression. Lex Renaissance, 10(1), 65–93. https://doi.org/10.20885/JLR.vol10.iss1.art3
Muin, F. (2025). Analysis of the Indonesian Legal State: The Role of Constitutional Law in Guaranteeing Constitutional Supremacy. Jurnal Tana Mana, 6(2), 96–105. https://doi.org/10.33648/jtm.v6i2.1021
Mustafa, C. (2021). The view of judicial activism and public legitimacy. Crime, Law and Social Change, 76(1), 23–34. https://doi.org/10.1007/s10611-021-09955-0
Rohmah, EI (2024). Dynamics of Constitutional Court Decision Number 90/PUU-XXI/2023 Concerning Age Requirements for Presidential and Vice Presidential Candidates. PROGRESIF: Journal of Law, 18(1), 100–131. https://doi.org/10.33019/progresif.v18i1.4636
Rozaq, MA, Batara, SD, & Jaya, MR (2024). The Urgency of Checks and Balances by the Constitutional Court through Judicial Activism in the Practice of Democracy in Indonesia. UNES Law Review, 6(3), 8796–8805. https://doi.org/10.31933/unesrev.v6i3.1780
Sabrina, S., & Khalid, K. (2023). Analysis of the dismissal of Constitutional Court judge Aswanto by the House of Representatives from a constitutional perspective in Indonesia. EDUCATIO Journal: Indonesian Education Journal, 9(2), 815. https://doi.org/10.29210/1202323214
Safitri, M., & Wibowo, A. (2023). The Role of the Constitutional Court in Indonesia (Understanding the Constitutional Court): Constitutional Court, Verdict. Journal of Multidisciplinary Research, 2(1), 71–76. https://doi.org/10.58705/jpm.v2i1.106
Sari, AFP, & Raharjo, PS (2022). The Constitutional Court as a Negative and Positive Legislator. Sovereignty, 1(4), 681–691. https://doi.org/10.13057/souvereignty.v1i4.112
Subandri, R. (2024). Legal Review of Constitutional Court Decision Number 90/PUU-XXI/2023 Concerning Age Limit Requirements for Presidential and Vice Presidential Nominations. Jaksa: Journal of Legal and Political Studies, 2(1), 135–153. https://doi.org/10.51903/jaksa.v2i1.1512
Wijaya, R. (2023). The Function of the Constitutional Court in Testing Laws Against the 1945 Constitution. IJOLARES: Indonesian Journal of Law Research, 1(1), 23–27. https://doi.org/10.60153/ijolares.v1i1.5
Yuliana, A., Tuasalamony, AA, Fath, A., Parhusip, AD, Febriani, A., & Bakhtiar, HS (2024). Analysis of the Level of Public Trust in the Constitutional Court Following Decision Number 90/Puu-Xxi/2023. Journal of Statutory Law, 3(2), 74–91. https://doi.org/10.35586/jhs.v3i2.9095
Downloads
Published
How to Cite
Issue
Section
License
Copyright (c) 2026 Teja Aulia, Nanang Sri Darmadi
This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.