The rise and dynamics of ‘conditional decision’ in Indonesian constitutional review

• Main Authors: Wicaksono, Dian Agung, Rahman, Faiz
• Other Authors: Asian constitutional law recent developments and trends : Vietnam, Hanoi, 6th and 7th December 2019. Volume 1
• Format: Conference or Workshop Item
• Language: Vietnamese
• Published: Đại học Quốc Gia Hà Nội 2020
• Subjects: constitutional court; constitutional review; conditional decision pattern; Indonesian judiciary.
• Online Access: http://repository.vnu.edu.vn/handle/VNU_123/94748
• Institution: Vietnam National University, Hanoi

As a newly established judicial institution, the Indonesian Constitutional Court already plays a significant role in upholding the 1945 Constitution of the Republic of Indonesia through its authorities specifies in Article 24C of the Constitution. One of the authorities which has the most case compared to others is the authority to review a Law against the Constitution, or often called a constitutional review. Since the establishment of the Indonesian Constitutional Court, constitutional review cases increased considerably. To date, the Constitutional Court has been deciding more than 1200 constitutional review cases. Among those decisions, there are some that include new formulated norms and constitutionality requirement to the reviewed norms, which make it becomes ‘conditionally constitutional’ or ‘conditionally unconstitutional’. The Court has been using this type of decision in approximately one-tenth of all constitutional review cases. Furthermore, the emergence of so-called ‘conditional decision’ gives a distinctive dynamic in the implementation of constitutional review authority. It gradually shifts the paradigm of the Constitutional Court’s position as a negative legislator towards a positive legislator. Moreover, the utilization of ‘conditionally constitutional’ and ‘conditionally unconstitutional’ decision also shows a unique pattern. In the early years of the Constitutional Court, ‘conditionally constitutional’ decision is more widely used than ‘conditionally unconstitutional’ decision. However, since 2009, the Court seemed to prefer using ‘conditionally unconstitutional’ decision. This research will elabourate the Constitutional Court’s ‘conditional decision’ utilization pattern, to give a better understanding of what ‘conditional decision’ is and how the dynamics in the constitutional review can significantly change the preference of ‘conditional decision’ type used by the Constitutional Court in deciding constitutional review cases using this approach.