The Role of the Constitutional Court in Reforming the Indonesian

State System

Anna Triningsih

, Suryanti T. Arief

, Achmad Edy Subyanto

and Joko Widarto

Faculty of Law, Esa Unggul University, Arjuna Kebon Street, Kebon Jeruk, Jakarta Barat, Indonesia

Keywords:

The Role of the Constitutional Court, Reforming, The Indonesian State System.

Abstract: The amendment ofthe 1945 Constitution since the reformation has encouraged the establishment of a more

democratic constitutional structure. These changes create state institutional structuresthat are in an equal

position to checks and balances. One of the new state institutions established to strengthen the legal and

democratic institutions in the Indonesian constitutional structure is the Constitutional Court, as one of the

judicial institutions with the judicial power. The changes also confirm that judicial power is an independent

power to conduct justice in order to uphold law and justice. This paper will discuss how the Constitutional

Court as a state institution performs its constitutional function and role through its decisions which can

influence and color the legal and constitutional reforms in Indonesia. The research method used in this study

is the normative juridical method. The results showed that the verdict is the Crown of the judiciary;

therefore, the achievements and role of the Constitutional Court as a judicial institution in coloring legal and

constitutional reforms in the homeland are reflected in its decisions, for example: decisions to recognize

simultaneous elections; political rights forthe former members of PKI; recall rights of political parties; the

use of KTP for voters unregistered in DPT; cancellation of regional regulations becomes the authority of the

supreme court; 20% of the education budget allocation; individual candidates in the elections; religion or

indigenous faithcolumn in KTP; women can run for Governor or Vice ofGovernor; DPD members may not

come from political party administrators.

1 INTRODUCTION

The dynamics of having state and law in the late

1990s experienced an era that was different from the

previous one. This era was later known as the

Reform Era which was a response to the previous

era, New Order Era. The response as a result of the

multidimensional crisis, coming from the

constitution that refers to state and law practices, is

no longer by the legal and democratic principles

aspired when establishing this country (Sumadi,

2012). On that basis, among other things, the

Amendment to the 1945 Constitution of the

Republic of Indonesia as a necessity.

The amendment ofthe 1945 Constitution which

stipulated the existence of a new state institution, the

Constitutional Court, in the branch of the judicial

power, cannot be said merely the presence of a new

court which adds to the number of existing courts.

However, the presence of the Constitutional Court

must be consideredas a part of the implementation of

the reform spirit that requires changes in having

state life and law. Therefore, the amendment of the

1945 Constitution which states that sovereignty is in

the hands of the people and carried out according to

the Constitution, and also affirmsthat Indonesia is a

state of law, the existence of the Constitutional

Court is an essential substance in the amendment

ofthe 1945 Constitution.

What is the importance of the Constitutional

Court in the amendment to the 1945 Constitution?

First, the Constitutional Court, with its function in

handling some instances in the constitutional field, is

to maintain the constitution to be carried out

responsibly by the will of the people and the ideals

of democracy. Second, the Constitutional Court is

thus also intended to maintain the implementation of

a stable state government, and also a correction of

the state administration experience generated by

multiple interpretations of the constitution. What

really changes after the amendment ofthe 1945

Constitution, especially with the presence of the

Constitutional Court with its decisions? The

2670

Triningsih, A., T. Arief, S., Edy Subyanto, A. and Widarto, J.

The Role of the Constitutional Court in Reforming the Indonesian State System.

DOI: 10.5220/0009950226702679

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 2670-2679

ISBN: 978-989-758-458-9

question can be answered briefly,i.e.,the

constellation of state and legal institutions has

changed.

Ifconstitutionally MPR as a special people’s

representative institution is the legislator of the

constitution, the Constitutional Court, based on the

amendment of the 1945 Constitution, as a

constitutional court, is the interpreter of the

constitution through its decisions. Therefore, it has

been explained that, in the perspective of legal

science, the decisions of the Constitutional Court

have changed the way of having state and the way of

law through the interpretations of the constitution.

The decisions of the Constitutional Court, especially

those are related to the authority to examine the

constitutionality of the law (judicial review), to the

extent that the decisions are in the granting of the

petition of the petitioner, always result in changes in

legal norms contained in the laws being tested.

Therefore, the decision of the Constitutional Court is

like a legislative decision by a representative body

of people that establishes a draft of law into a law

(material authorization) which is then formally

passed by the President (formal approval)

(Asshiddiqie, 2006). That is why, Kelsen,as the

initiator of the idea of establishing the first

constitutional court in the world, i.e.,in Austria in

1920 (Asshiddiqie, 2005), stated that the

constitutional parliament and the court are both

“legislators”. Parliament is a legislator in a positive

sense (positive legislator), while the constitutional

court (verfassungsgercihtshoft) is a legislator in a

negative sense (negative legislator) (Kelsen, 2007).

The Constitutional Court, with its role as a

“negative legislator” as aforementioned before, is a

law-forming practice known since the mid-20th

century. Therefore, the formation of law began to

rely a lot on the role of constitutional justice, in

addition to parliament. Therefore, the need to study

and explore judicial review decisions that change

legal norms in the law grows and develops

everywhere throughout the world, especially in

democratic law states (the democratic rule of law) or

a democratic country based on law (constitutional

democracies).

2 RESEARCH METHOD

This study uses a normative juridical method

(Soekanto and Mamudji, 1995). With this normative

juridical approach, it will examine the decisions of

the Constitutional Court that amend the Indonesian

constitutional legal system. The specification of this

research is descriptive analysis, because it is

expected to be able to provide a detailed, systematic,

and comprehensive picture with the object to be

studied, i.e.,the relation of the role of the

Constitutional Court through its decisions, in the

renewal of the Indonesian state system.

3 DISCUSSION

In the ‘common law’ countries, the habit of studying

court decisions is a necessity and is even considered

as the main work of the world of higher education

law and law enforcement tasks. The decisions of the

previous court were considered to be the main

source of law. Therefore, what was referred to law

according to the ‘common law’ tradition, primarily,

were the decisions of the courts themselves.

Therefore, the legal system in Anglo-American

countries is referred to as “judge-made law” or

judicial law. It is the judge who holds the main

position that creates legal norms, and the judge’s

decision is also the object of scientific study in the

world of education and research. As a result, the

term “science of law”refers to “jurisprudence”,

which is defined as a “civil law” as the decision of

the previous judge which in Dutch wascalled

‘jurisprudentie’ (Asshiddiqie, 2006).

It can be said that even though the judicial

branch of power does not directly make law, the

court interprets the law through decisions on cases

that must be examined and tried. Judges who will try

similar cases in the future must make the previous

court decision as a reference. Therefore, it is said

that in a ‘common law’ system, the law is judge-

made law. Because, court decisions, especially

higher courts are binding and are part of the law that

must be used as a reference for subsequent legal

decisions. In general, the court will try to be

consistent in deciding cases that are similar to the

same decision in the future. This principle is

called“stare decisis”,meaning “let the decision

stand” (Kansil, 1986).

Meanwhile, in countries with the tradition of

“civil law” like in Continental Western Europe, what

is preferred is the written law made by parliament.

The law is also the object of the study of legal

science, while the decision of the previous court is

considered important but not more important when

compared to the written legislation as a source of

law. Therefore, the needs and interests to discuss,

study, and publish court decisions are often also

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2671

underestimated by ‘jurist’. However, with the

establishment of a constitutional justice institution

and the development of the practice of “judicial

review” which acts as a “negative legislator” as

stated by Kelsen, the practice of forming law since

the mid-20th century began to rely a lot on the role

of constitutional justice, in addition to parliament.

Because, the need to study and explore ‘judicial

review’ decisions that change legal norms in law

continues to grow and develop everywhere in the

world, especially in the democratic rule of law or

democratic countries based on law (constitutional

democracies) (Asshiddiqie, 2005).

On the contrary, since the mid-20

century, there

has also been a growing practice in “common law”

countries that have begun to consider the role of the

law as important. Even today, the production of

legislation in the United States as a country with a

“common law” tradition is far more than the

production of laws in Germany, France,and the

Netherlands which are countries with a “civil law”

tradition. In fact, since the 1950s, new terms have

emerged that intend to complete the term

“jurisprudence” for the notion of legal science,

i.e.,“legislation” or legal science based on legislation

(Duxbury, 2013). Even today, this term has not only

grown increasingly popular, but has also

increasingly become the object of study by legal

experts, both in America, in Europe and Australia as

a new perspective in legal studies (Wintgens,

2006).It means that in the ‘common law’ system, the

role of statutory law is increasingly aligned with a

court decision (judge-made law). Therefore, on the

contrary, in the legal system of Indonesia and other

‘civil law’ countries, it is time to develop an

understanding of the importance of the role of

jurisprudence in order to further develop the

Indonesian legal system in its theory and practice in

the future.

3.1 Jurisprudence in Civil Law and

Common Law Systems

Jurisprudence, according to the tradition of “civil

law,” is a court decision or “vonnis” that serves as

one of the sources of law in the next legal decision-

making process. Court decisions that already have

legal powers that are final and binding

(inkrachtvangewijsde), in essence, can no longer be

changed. However, in the course of time, there is

also a possibility that understanding of the contents

of past decisions has shifted or changed according to

the need to provide solutions for similar cases in the

future, but with a different solution from the

previous decision. Even though the decisions have

been repeated over and over again, at some time,

they may change because of the need to meet the

demands of justice that continue to develop in

society. Such previous decisions are also referred to

as ordinary “jurisprudentie”,i.e.,jurisprudent which

is not or is not yet permanent.

In judicial practice, especially in the Supreme

Court of the Republic of Indonesia, to determine

whether a ‘jurisprudence’ can be said to be paste

jurisprudent or ordinary jurisprudence, a Special

Team is formed to evaluate and determine through

examination and notation, before officially approved

by the Chairperson of the Supreme Court and

published in the annual jurisprudence book. It means

that not all Supreme Court rulings or court decisions

that have been used as repeated references by judges

in deciding similar cases can be said to be

“pastejurisprudentie” before the Supreme Court

formally determined it.

From the results of the examination and notation

by the Supreme Court Team, the extent to which a

decision has met the standard of permanent

jurisprudence law can be determined. The results of

the examination and notation are recommended to

the Chairperson of the Supreme Court for their

ratification as a decision that is considered to have

truly met the standards of jurisprudence law.

Therefore, in general, it can be understood that

‘permanent jurisprudence’ is the decisions of judges,

whether at the first level, the appeal level, or even

the Supreme Court’s decision that has permanent

legal force, on cases that are not yet clear, the legal

rules that have the content of justice and truth have

been followed repeatedly by the next judge in

deciding the same case, which decision has been

tested academically by a team or jurisprudence

assembly in the Supreme Court and recommended as

permanent jurisprudence that is binding and must be

followed by judges in the future’ (Kamil and

Fauzan, 2004).

Whereas, non-permanent jurisprudence is a

decision that has permanent legal force but has not

been through examination and notation tests by

teams or assemblies in the Supreme Court and there

are no recommendations for permanent

jurisprudence. More detailed criteria regarding

jurisprudence can also be seen from the results of

BPHN’s research in 1995, stating that a judge’s

decision can be called jurisprudence (permanent) if

the judge’s decision meets the following 5 elements

(Lotulung, 1997):

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1). The decision on a legal event that has not been

clearly regulated in the legislation;

2). The decision has permanent legal force;

3). The decision has been repeatedly used as a

basis for deciding the same case;

4). The decision has fulfilled the feeling of justice;

and

5). The decision is justified or stipulated by the

Supreme Court as permanent jurisprudence.

In the tradition of “civil law” which usually

relies on “statutory law” or legislation, the existence

of jurisprudence is not prioritized as in the “common

law” tradition which instead prioritizes the

“precedent” principle and is commonly

called“judge-made law”. However, in the tradition

of “civil law”, the judges also have reason to create

law through this jurisprudence, namely (Lotulung,

1997):

1). If the provisions in the existing law are not

clear enough or vague so that it requires a

comprehensive legal interpretation;

2). The existing laws are considered outdated or

no longer in line with the sense of justice and

community legal awareness; and

3). The law does not regulate legal actions

submitted to the court

Because of these three reasons, the judge needs

to create law through jurisprudence. Two principles

that are mutually contradictory with one another,

which is commonly usedabout this jurisprudence in

practice, are (Lotulung, 1997):

1). Precedent principles, i.e.,judges are bound and

must not deviate from the decisions of previous

judges or judges who are higher in similar

cases; and

2). The principle of freedom, namely that the

judge is independent and free, not bound by

judges’ decisions that are higher or equal in

level.

In the Indonesian legal system, the existence of

jurisprudence as a source of formal law that creates

the law is based on Article 22 AB (Staatblad 1847

No. 23) and Article 10 Law No.48/2009 on Judicial

Power. Both determined that “the Court must not

refuse to examine, hear, and decide on a case that is

filed on the pretext that the law does not exist or is

unclear, but must examine and try it”. In the absence

of the provisions of laws or legislation that have

already been regulated, the judge must dig, follow,

and understand justice and legal values that live in

the community. This is also by the general principles

that apply, “ius curia novit”which means that the

judge is considered to know the law (Siahaan, 2005).

If the decision of the previous judge is followed

by the judge below or the judge afterward, the

decision of the previous judge is called

“jurisprudence” which can be a source of formal

law. Laws created by judges (judge-made law) in the

form of verdicts (vonnis) are called ‘in concreto’

laws, which, in reality, produce new laws which are

usually understood to be limited only in the form of

binding parties. It is because the legal provisions

contained in court decisions are individual and

concrete norms; whereas the law created by the

legislators and the bodies authorized to form other

laws and regulations (regulators) is called the law

“in abstracto” which is binding in general and

abstract. Because, the methods contained in it are

“general and abstract norms” (Asshiddiqie, 2006).

3.2 The Constitutional Court and Its

Development

The establishment of a constitutional court as a

separate institution because of the need for a court

that specifically examines the product of the law (as

Kelsen calls statute and customary law) which is

contrary to the constitution. This idea started

withKelsen, who proposed the establishment of an

institution named ‘Verfassungsgerichtshoft’ or the

Constitutional Court. This idea was then accepted

unanimously and adopted into the 1920s

Constitution which was passed in the Constitutional

Convention on 1 October 1920 as the Austrian

Federal Constitution (Asshiddiqie, 2006).

According to Kelsen(Kelsen, 1961), the

possibility of conflicts arises between higher and

lower norms, not only related to statutes and court

decisions but also relates to the relationship between

the constitution and the law. This is an

unconstitutional problem of the law. A statute only

applies and can be enforced if it is by the

constitution and does not apply if it is contrary to the

constitution. A law is only valid if it is made based

on the provisions of the constitution. Therefore, a

body or court is needed specifically to declare the

unconstitutionality of existing law. The

constitutional court was originally an institution that

was intended only to examine the constitutionality of

a law against the constitution. Therefore, the

constitutional court is often referred to as the

“guardian of the constitution.”

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In its development, the basic concept of

constitutional court formation in various countries is

closely related to the development of the principles

and theories of modern constitution adopted by

various countries that adhere to the principles of

constitutionalism, the principle of the rule of law,

the principle of checks and balances, the principles

of democracy and the guarantee of the principle of

human rights protection free and impartial judiciary

and political experience from each country. The

existence of a constitutional court is needed to

uphold these principles. After being formed for the

first time based on the 1920 Vienna Constitution, the

constitutional court continued to be adopted by

various countries. Now, the constitutional court has

existed in 78 countries including Indonesia

(Asshiddiqie and Fakhri, 2003).

3.3 Constitutional Court in the

Indonesian State Administration

System

The constitutional system basically contains two

aspects, namely aspects related to the power of state

institutions and their relations with each other

among the state institutions and the relations

between state institutions and citizens. Both aspects

can be seen in the constitution of a country

(Hoesein, 2009). The constitutional system regulated

in the constitution of a country and a democratic

political format, as well as a system of separation of

state power as well as checks and balances, cannot

be separated from the principles and implementation

of authority to test or test legislation (judicial

review).

In Indonesia, changes to the 1945 Constitution

provide a new color in the constitutional system.

One of the fundamental changes in the 1945

Constitution is the amendment of Article 1

paragraph (2) stating “Sovereignty is in the hands of

the people and carried out according to the

Constitution”. This provision implies that people’s

sovereignty is no longer carried out entirely by the

People’s Consultative Assembly but carried out

according to the provisions of the Constitution

(Asshiddiqie, 2006). Also, the amendment of the

1945 Constitution has given birth to a state

institution that functions as a guardian and

interpreter of the constitution, i.e.,the Constitutional

Court.

In essence, the formation of the Constitutional

Court needs to be done because our nation carries

out fundamental changes to the 1945 Constitution.

In the context of the First Amendment to the Fourth

Amendment of the 1945 Constitution, our nation has

adopted new principles in the constitutional system,

namely, among other things, the principle of

separation of powers and ‘checks and balances’ as a

substitute for the previous parliamentary supremacy

system. With these changes, the principle of the rule

of law adopted is reinforced (a) by regulating the

law enforcement mechanism starting from the

enforcement of the constitution as the highest law.

As a result of these changes, (b) it is deemed

necessary to establish a mechanism to decide which

authority disputes that may occur between

institutions that have equal status with one another,

which its authority is determined in the Constitution,

roles and judges who can control the processes and

products of political decisions that only base

themselves on the principle of ‘majority rule’.

Therefore, the functions of the judicial review of the

constitutionality of the law and the process of legal

review of the demands for dismissal of the President

and/or Vice President are linked to the function of

the Constitutional Court. Also, (d) it is also

necessary to have a mechanism to decide on various

disputes arising which cannot be resolved through

the usual court process, such as disputes over

election results and demands for the dissolution of a

political party.

3.4 Decision of the Constitutional

Court in the Reformation of the

Indonesian State System

As we know that one of the Constitutional Court’s

authorities granted by the 1945 Constitution is to

have judicial review of the laws againstthe 1945

Constitution.It is carried out with the 1945

Constitution benchmarks. It can be carried out

materially or formally. The materialreview involves

testing the material of the law so that what is

questioned must be clear which parts of the law

conflict with what provisions of the Constitution.

The reviewcan consist of only one chapter, one

article, one sentence or one word in the relevant law.

While the formal review is testing the process of

forming the draft of law into law whether it has

followed the applicable procedure or not.

The Constitutional Court’s decision in judicial

review of the laws against the 1945 Constitution

consists of three types of decision, namely: granted,

rejected and unacceptable. Application for judicial

review of the law against the 1945 Constitution, in

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which its decision is to state that the application

cannot be accepted if a) the applicant does not fulfill

the legal standing as an applicant; b) the applicant

does not clearly state that the establishment of the

law does not fulfill the provisions and/or material of

the contents of the law deemed to be contradictory to

the 1945 Constitution. The petition was granted if

the petition was grounded or the law petitioned for

review contradicted the 1945 Constitution. To the

judicial review which was granted, the

Constitutional Court stated expressly the part of the

petition that was granted and stated that it was

contrary to the 1945 Constitution. Therefore, the

provisions above did not have binding legal force.

An application can also be granted if the

establishment of a law does not fulfill the provisions

for the establishment of law based on the 1945

Constitution. Meanwhile, the application is rejected

if the application submitted does not contradict the

1945 Constitution both its formation and the

material in part or whole.

In the development of the Constitutional Court’s

decision, there are six types of decision ruling in

judicial review of the law against the 1945

Constitution, namely: granted; granted overall;

granted for some; rejected; rejected under certain

constitutionality conditions, and cannot be accepted.

One type of interesting decision is that the verdict is

amended “but rejected”however, in its legal

considerations, it provides constitutionality

conditions or states one of the provisions in the

conditionally constitutional. Conditionally

constitutional in the Constitutional Court’s decision

is a decision stating that a statutory provision does

not conflict with the constitution by giving

requirements to state institutions in the

implementation of a statutory provision to pay

attention to the interpretation of the Constitutional

Court on the constitutionality of the statutory

provisions that have been tested. If these conditions

are not fulfilled or interpreted otherwise by the state

institutions implementing them, the provisions of the

laws that have been tested can be submitted for

review by the Constitutional Court.

In the legislation, it is stated that the

Constitutional Court has the authority to adjudicate

at the first and final levels in which its decisions are

final. Theoretically, the word “final” means the

Constitutional Court’s decision to have permanent

legal force after it has been pronounced in a court

session that is open to the public and no legal effort

canbe taken against the decision. The meaningful

binding nature of the Constitutional Court’s decision

does not only apply to the parties but all Indonesian

people. Also, the Constitutional Court’s decision

which is final and bindingleads to some legal

consequences in its application. The Constitutional

Court’s decision because the object is related to the

common interest and everyone so that the nature of

the petition in the Constitutional Court is not faced

to face as a dispute in the civil or administrative

court. The decisions made by the Constitutional

Court includethe judicial review, where the law

itself is generally binding on all citizens, then by

being declared not binding, the law does not only

have binding legal force against the party requesting

the Court, but also all citizens. Basically, because of

the nature of the case being tried in the

Constitutional Court, the decisions made by the

Constitutional Court are erga omnes. The erga

omnesdecisions can also change the existing

governance system. Several Constitutional Court

decisions have changed the state administration

system in Indonesia, such as:

3.4.1 Authority of the House of

Representatives Which Only

Determines Agreement or

Disagreement Related to the Results of

Selection of Supreme Court Justice

Candidates by the Judicial

Commission

Constitutional Court Decision Number27/PUU-

XI/2013 dated January 9, 2014, affirms the position

of DPR in determining the candidate for judges in

AGUS should be limited to approval or not giving

approval to the prospective Chief Justice proposed

by the Judicial Commission, and the Chief Justice

submitted by the Judicial Commission to the House

of Representatives is only one candidate for Chief

Justice for every one vacancy with a copy submitted

to the President.

3.4.2 The authority of the Regional

Representative Council to not Only

Propose a Specific Bill but also Discuss

the Bill

The Constitutional Court Decision Number 92/PUU-

X/2012 dated March 27, 2013, emphasizes and

clarifies the authority of the Regional Representative

Council in the process of making the Law. Whereas

at the time of discussing the bill, input from the

Regional Representative Council is an integral part.

Also, the Regional Representative Council must be

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2675

actively involved in the process of discussing a bill

together with DPR and the president.

3.4.3 Role and Position of the State in the

Management of Water Resources

Decisions of the Constitutional Court Number 058-

059-060-063/PUU-II/2004 and 008/PUU-III/2005

dated July 19, 2005, affirm that Water Utilization

Rights and concession permits are licensing systems

in which its issuance must be based on water

resource management patterns where the

arrangement of the pattern has involved the broadest

participation of the community.

The performance of water resources management

will be supervised directly by the stakeholders. With

the licensing system, exploitation of water resources

will be controlled by the Government.

Permit applications, both for obtaining water

business rights and concession permits, must be

rejected if the permit application is not in

accordance with the water resources management

pattern that has been prepared, because the state in

exercising water rights includes activities: (1)

formulating policies (beleid); (2) carrying out

management actions (bestuursdadd); (3) making

arrangements (regelendaad); (4) managing

(beheersdaad); and (5) supervising

(toezichthoudendaad).

3.4.4 Regional Head Elections on Election

Era and Regional Head Elections on

Non-Election Era

Decision of the Constitutional Court Number072-

073/PUU-II/2004 dated 22 March 2005 affirms that

the direct election of regional heads and regional

vice heads (Pilkada) must be held based on the

principles of the Election, namely direct, public,

free, confidential, honest and fair and organized by

an independent organizer as required by the 1945

Constitution. KPUD as derivatives of KPU as the

constitutional organ of the election organizers are

independent in order to ensure the quality of the

election by the 1945 Constitution. DPRD

intervention to KPUD will make the election not

qualified. The implementation of the regional

elections as described is an election. Therefore,

disputes over election results can be the authority of

the Constitutional Court based on the expansion of

the understanding of the election.

3.4.5 Political Rights of Former Members of

Banned Organizations in Elections

The Constitutional Court’s Decision Number11-

17/PUU-I/2003 dated February 24, 2014, assess that

in the matter of limiting the right to vote in elections,

it is usually only based on considerations of

inability, such as age and illness, and the

impossibility of having to vote. It has a permanent

legal force which is generally individual and not

collective.

The Court rules that individuals who are former

members of the Indonesian Communist Party (PKI)

and mass organizations under its auspices should be

treated equally with citizens of other countries

without discrimination, including to belegislative

candidates.

3.4.6 Settlement of Disputes over Regional

Head Election Results as Long as

There is No Regulating Law

Constitutional Court Decision Number97/PUU-

XI/2013 dated May 19, 2014, is based on the

interpretation of the original intent, basically the

authority of the state institution which is clearly and

clearly described in the 1945 Constitution. It is a

limitation, so it is not possible to be granted other

authority. Moreover, this other authority is given by

low-level regulations which hierarchically are under

the constitution. Therefore, from this perspective,

the authority of the Constitutional Court is also

limited, so that it cannot,but Pilkada is not the

authority of the Constitutional Court. However,

before a special judiciary is formed which

adjudicates disputes over the results of regional head

elections, the Constitutional Court is still given the

authority to adjudicate disputes over the results of

regional head elections.

3.4.7 Simultaneous Election

Constitutional Court Decision Number14/PUU-

XI/2013 dated January 23, 2014 states that the

election of the president and vice president must be

carried out simultaneously with the election to elect

members of representative institutions (DPR, DPRD,

DPD) starting in 2019 and so forth. Meanwhile, the

requirements to submit a pair of candidates for

president and vice president are the authority of

thelegislators while still paying attention to the

provisions of the constitution.

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3.4.8 Education Budget Allocation

Constitutional Court Decision Number11/PUU-

III/2005 dated October 19, 2005, assesses that

education in Indonesia has been left behind.

Therefore, it is the time for education to be the main

priority of development in Indonesia by giving

priority in the budget sector for funding fulfillment.

Education can be done in stages, even though the

1945 Constitution requires that the education budget

beprioritized at least 20% of the state budget.

3.4.9 Individual Candidates in the Regional

Heads Election

Constitutional Court Decision Number005/PUU-

V/2007 dated July 23, 2007, rules that the

nomination of regional heads and regional vice

heads, other than through political parties or join

political parties, can also be constitutionally through

individuals with conditions that are determined

proportionally to the nomination submitted by

political parties or a combination of political parties.

3.4.10 The Right of Recall of Political Parties

to the Members of the House of

Representatives

The Constitutional Court’s Decision

Number008/PUU-IV/2006 dated September 28,

2006, confirms that the recall of Members of the

House of Representatives conducted by the political

party carrying it does not violate the constitution.

3.4.11 Voters Who Are Not Registered in the

DPT Can Use Voting Rights

Constitutional Court Decision Number102/PUU-

VII/2009 states that voters who are not listed in the

Final Voter List (DPT), can still use their voting

rights by using the KRP or passport according to the

address listed in the identity, by registering at KPPS

local one hour before the voting at TPS.

3.4.12 Cancellation of Regional Regulations

Becomes the Authority of the Supreme

Court

Constitutional Court Decision Number137/PUU-

XIII/2015 dated April 5, 2017, affirms the

governor’s decision position is not part of the

legislative regime.It cannot be made as a legal

product to cancel Regency/City Regional

Regulation.As a result, the cancellation of

Regency/City Regional Regulation becomes the

authority of the Supreme Court.

3.4.13 Women Can Nominate Themselves as

Governors or Vice Governors of

Yogyakarta Special Region

Constitutional Court Decision Number88/PUU-

XIV/2016 dated August 31, 2017, abolishes the

phrase “which includes, among other things, the

history of education, employment, siblings, wife and

children”, in Article 18 paragraph (1) letter m of the

DIY Privileges Act. As a result, women/wives may

also run for Governor or Vice Governor of DIY.

3.4.14 Religion Column on KTP for

Believers

The Constitutional Court Decision Number 97/PUU-

XVI/2018 dated November 7, 2017, affirms that

religion or indigenous faith can be included in the

religious column in the Identity Card (KTP) and

Family Card (KK).

3.4.15 Members of the Regional

Representative Council Cannot be

Filled byPolitical Party Administrator

The Constitutional Court Decision Number 30/PUU-

XIV/2018 dated July 23, 2018, confirms the

prohibition on the nomination of Members of the

Regional Representative Council from political party

administrators. Therefore, DPD cannot be filled by

political party administrators. “Administrators of

political parties” in this decision, are administrators

starting from the central level to the lowest level by

the organizational structure of the political parties. It

is considered that, first, DPD is a form of regional

representation; second, to prevent political distortion

of the double representation of political parties in

making decisions, especially important political

decisions such as the amendment to the 1945

Constitution; third, even though the authority of the

DPD is limited, all of them are oriented to regional

interests that must be fought nationally based on the

postulate of balance between national and regional

interests.Fourth, DPD members are elected through

elections based on individual nominations, rather

than from the political parties; fifth, the existence of

the DPD cannot be separated from the existence of

Regional Representatives as one of the elements of

the MPR consisting of political representation and

regional representation; and sixth, DPR and DPD

have many fundamental differences as a

representative body.

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4 CONCLUSIONS

The definition of law in the Constitutional Court’s

decisions amendment or dictum and the ratio

decidendi of a decision. It will be clearer when the

Constitutional Court decision is analyzed based on

the decision structure. In the Constitutional Court’s

decision which grants an application to examine the

constitutionality of the law, in addition to the

amendment or dictum which states that the

unconstitutionality of the norm is reviewedand that it

is not legally binding, there are also legal

considerations. In these legal considerations, there

are legal considerations as ‘obiter dicta’ and legal

considerations as ‘ratio decidendi’. Legal

considerations as the ‘ratio decidendi’ are

substantially constitutional interpretations which are

actually law. Therefore, in the perspective of the

hierarchy of norms, the law can be said to be in a

position under the constitution and above the law.

By such a position of legal norms, none of the state

institutions, whether within the ranks of government,

representative institutions, or the judiciary, can

ignore it, but legally it must carry out it in good

faith. Such neglect of the law can be said to be

‘disobedient’ to the constitution or to the law itself.

In the perspective of the judicial process, the

Constitutional Court’s decision does not only qualify

that a norm is in constitutional or unconstitutional

law, which is based on this decision. It must be

understood that such matter is as a stage that is at the

end of the series of proceedings to adjudicate in the

petition for the constitutionality of the law. Because

it is just one stage of a series of judicial processes,

other stages precede it which are not less important,

i.e., the stage of the constitution. At this situation,

the judge through the verification process reviews

the reasons which become the basis for the request

to examine the constitutionality of the law norms.

Subsequently, the judge employs the sharpness of

the reading of the constitution which does not only

have constitutional legal norms but also philosophies

and moral teachings,etc. in the life of the nation and

state. By carrying out the process of constellation

and qualification, the judge digsand extracts it from

the constitution and then presents it in a decision to

become a legal consideration as a ‘ratio

decidendi’an amendment or decision.

The Constitutional Court’s decision which grants

the constitutionality of the law is declarative and

constitutive. Based on the nature of such decisions,

there is no institution called execution which is the

implementation of court decisions that are carried

out by force through state instruments. The

Constitutional Court’s decision must be carried out

by legal subjects who become adressat. When the

decision is not implemented, so that there is a party

who is harmed, the aggrieved party can take the

available legal remedies. What is clear to the

Constitutional Court as a legislator, even though it is

negative, as well as DPR together with the President

as a legislator, is no longer related to the

implementation.

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