Strengthening the Legitimacy of the Indonesian Constitutional Court Decision through Supermajority Requirement: Lesson from the South Korean Experience

Criticism toward the legitimacy of the constitutional court decisions in judicial review cases remains to be a common problem for many courts around the world, including the Indonesian Constitutional Court (popularly known as 'MK'). Thus, the Indonesian Constitutional Court was established with its structure designed to minimize the legitimacy problems in its decisions. Although efforts to minimize the problem of legitimacy have been made, the criticism toward Indonesian Constitutional Court’s legitimacy remains throughout its development, especially when the institution decides against public opinion. Over the years, the issue of legitimacy became even more complicated; the existing political institutions had expressed their intent to intervene in the Indonesian Constitutional Court through their power to appoint its judges. As such, there is a strong likelihood that the public will not consider the Court Decisions as independent, which in turn may further hamper its legitimacy. To resolve this issue, this paper shall discuss the ’supermajority’ mechanism, in which a supermajority vote amongst the judges is required in order for a law to be declared unconstitutional. We use Constitutional Court of Korea’s experience in implementing this mechanism as an example to prove that the adoption of the supermajority requirement has the potential to succeed in strengthening the legitimacy of the decisions of the constitutional courts as well as making it more difficult for the political institutions to capture the court

Restoring Indonesia’s (Un)Constitutional Constitution: Soepomo’s Authoritarian Constitution

The recent years saw the rise in discourse to undo the liberal-democratic amendments introduced between 1999 and 2002 and restore the Indonesian 1945 Constitution to its original 1945 version. Some Indonesian public figures believe that these amendments are not legitimate, because they are deemed to have eliminated the basic values of the original 1945 Constitution which was built on the “integralist” concept as propounded by its main architect Soepomo. According to the integralist conception, the state should be seen as a family in which the government played a role as a wise father who can bring its people to the right choice. This article seeks to prove that these amendments are legitimate although they constitute a “dismemberment” of the original 1945 Constitution. This is because the original 1945 Constitution was formed only by a handful of elites in an institution established by the Japanese occupying power in early 1945. By contrast, the Majelis Permusyawaratan Rakyat (People’s Consultative Assembly) who was in charge of the four amendments to the 1945 Constitution had a greater democratic legitimacy compared to the drafters of the original Constitution given that they were elected through the 1999 elections. Furthermore, the original 1945 Constitution was never intended to operate beyond the Indonesian revolutionary period, which ended in 1949. It was expected that the document be significantly changed or even replaced by the People’s Consultative Assembly through the amendment process

Kewenangan Mahkamah Konstitusi Memutus Perselisihan Hasil Pemilu Sebagai Bentuk Judicialization 0f Politics

Judicialization of politics are the phenomenon which usually happen in a democratic constitutional state, which cause power movement to resolve problems which related to public policy making and political nature, from the political institution to judicial institution. In Indonesia this phenomenon arise in the authority of the Constitutional Court, especially in the authority of the Constitutional Court when they adjudicate electoral result dispute, whichs so far, most widely submitted cases to the Constitutional Court. But, as a independent and impartial judicial institution the Constitutional Court must restrict to adjudicate the political cases such as electoral result dispute so that this institution would not be politicking object of another branch of government, however judicialization of politics phenomenon is something that Constitutional Court would not avoid, so that this article will examine how important the Constitutional Court to priority judicial restraint principle in order to adjudicate electoral result dispute, so that Constitutional Court would not be politicking object of another branch of government

Kewenangan Mahkamah Konstitusi Memutus Perselisihan Hasil Pemilu Sebagai Bentuk Judicialization 0f Politics

Judicialization of politics are the phenomenon which usually happen in a democratic constitutional state, which cause power movement to resolve problems which related to public policy making and political nature, from the political institution to judicial institution. In Indonesia this phenomenon arise in the authority of the Constitutional Court, especially in the authority of the Constitutional Court when they adjudicate electoral result dispute, whichs so far, most widely submitted cases to the Constitutional Court. But, as a independent and impartial judicial institution the Constitutional Court must restrict to adjudicate the political cases such as electoral result dispute so that this institution would not be politicking object of another branch of government, however judicialization of politics phenomenon is something that Constitutional Court would not avoid, so that this article will examine how important the Constitutional Court to priority judicial restraint principle in order to adjudicate electoral result dispute, so that Constitutional Court would not be politicking object of another branch of government

Pengaruh Fenomena Globalisasi terhadap Relevansi Gagasan Unifikasi Sistem Hukum Nasional di Indonesia

Abstrak Gagasan untuk menciptakan unifikasi sistem hukum nasional merupakan salah satu politik hukum tetap yang dimiliki Indonesia. Dijadikannya gagasan ini sebagai politik hukum tetap dimaksudkan untuk mengatasi segala permasalahan yang timbul dari kondisi masyarakat Indonesia yang masih terkotak-kotakan oleh pluralisme hukum. Sayangnya, ketika gagasan ini belum juga terwujud guna mengatasi masalah pluralisme hukum yang ada di masyarakat, upaya mewujudkan unifikasi sistem hukum nasional semakin dipersulit oleh fenomena globalisasi yang membawa serta pengaruh globalisasi dalam bidang hukum (globalisasi hukum). Akibat dari globalisasi hukum ini menyebabkan terkikisnya peran negara dalam proses pembentukan hukum nasional, serta membuat tak dapat laginya negara mengatur bidang-bidang hukum yang bersifat transnasional sehingga memunculkan pluralisme hukum dalam bidang-bidang tersebut. Kondisi tersebut jelas membuat gagasan mewujudkan unifikasi sistem hukum nasional perlu untuk dikaji kembali, agar nantinya gagasan ini tetap relevan dijadikan sebagai politik hukum tetap Indonesia. Kata Kunci:Unifikasi, Sistem Hukum Nasional, Politik Hukum, Globalisasi.   Abstract The idea to create national legal system unification is one of fixed legal policy in Indonesia. The goal of this idea is to overcome all the problems which rise from the condition of Indonesian’s people who still divided by pluralism of law. Unfortunately, while this idea has not completed to overcome those problems, the effort to create national legal system unification is being complicated by globalization phenomena which is bring out the globalization of law. Consequently, it caused the reduction of state power in national law making process, and the state can no longer regulate transnational law area which is bring out pluralism of law in that areas. This condition caused the idea to create national legal system unification need to re-examine, so in the future this idea still relevant to become Indonesian’s fixed legal policy. Keywords: Unification, National Legal System, Legal Policy, Globalization. &nbsp