Constitutional Courts And Judicial Review: Lesson Learned For Indonesia

In the context of reviewing law through judiciary organ, the court plays significant role to review several regulation. This article specifically will discuss regarding the role of court on judicial review. This idea spreads out worldwide including in Indonesia. The Constitutional court and judicial review are two words which having inextricably meaning that attached to each other. On worldwide, the system of reviewing law by involving judges commonly has been practiced by several countries. There are two most significant state organs that plays role in the system, they are constitutional court and supreme court. Most countries do not have constitutional court and will deliver the authority of judicial review through supreme court. It has added more tasks, not only to adjudicate the common case, but also regarding constitutionality matter of an act against constitution. This model is commonly known as a centralized model, as practiced in the United State of America. In the Countries that owned a constitutional court, will certainly deliver the authority of judicial review through constitutional court. This model is commonly known as Kelsenian’s model. In this model, the constitutional court will merely focus on the constitutionality of regulations, and ensuring those regulations not in contradicting with the constitution. The Supreme Court in this model merely focus on handling common cases instead of regulations. Those two model of judicial review (through the constitutional court and the supreme court) has widely been implemented in the world legal systems, including in Indonesia. In the authoritarian regime, Indonesia implemented the centralized model, which positioned the Supreme Court as the single state organ to handle the common case and also judicial review. Having difficulties with the centralized model, after the constitution amendment in 2003, Indonesia has officially formed the constitutional court as the guardian of constitution. However, the Indonesian Constitutional Court (ICC) merely examine and/or review the statute that against the Indonesian’s Constitution year 1945, and related to the legislation products lower than the statute will remains the portion of the Supreme Court jurisdiction. Such modification is vulnerable resulting a judgement conflict between the ICC and the Supreme Court.