History of Judicial Review in Indonesia

Abstract

The granting of judicial review powers to various state institutions has raised problems in practice. The Constitutional Court is granted the power of judicial review based on the provisions of Article 24C paragraph (1) of the 1945 Constitution of the Republic of Indonesia, which states that the Constitutional Court has the power to hear cases in the first and last instance and its decision is final to review legislation against the Constitution. Meanwhile, based on the provisions of Article 24A paragraph (1) of the 1945 Constitution of the Republic of Indonesia, in the event that there is legislation under the Constitution contrary to the law, the authority is in the hands of the Supreme Court. This research examines issues relating to the history and rationale of judicial review and the separation of judicial review powers in Indonesia. This research is a normative legal research. The research uses primary legal materials and secondary legal materials presented using a descriptive method. The history of the existence of judicial review is inseparable from the settlement of the Madison versus Marbury case. The history and rationale of judicial review is also inseparable from the thinking of Hans Kelsen. The idea of judicial review in Indonesia had appeared in 1945 in the Great Meeting of the Investigation Board for Preparatory Efforts for Independence delivered by Yamin. The history of judicial review in Indonesia can be seen from the period of 1945-1949, the constitutional period of the Republic of Indonesia, the enactment of the Provisional Constitution of 1950, the Post-Presidential Decree Period of 5 July 1959 and according to the Post-Reform 1945 Constitution.  The debate on the Constitutional Court and the Supreme Court emerged in the minutes of the 1945 Constitutional amendment debated by the Ad Hoc Committee I of the MPR Working Committee in 2000 and 2001, particularly regarding the position of the Constitutional Court and the scope of authority of the Constitutional Court.