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All Journal Novum : Jurnal Hukum indonesian Journal of Administrative Law and Local Government (IJALGOV)
Bachrul Amiq
Faculty of Law, Universitas Negeri Surabaya
Law, Crime, Criminology & Criminal Justice

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Constitutional Court as Positive The Constitutional Court as Positive Legislator: Rethinking Checks and Balances Considering Decision No. 60/PUU-XXII/2024 Imelda Ayu Juwita Putri; Bachrul Amiq; Anastasia Kayla Ruwiyanto
Indonesian Journal of Administrative Law and Local Government Vol. 3 No. 1 (2026): INDONESIAN JOURNAL OF ADMINISTRATIVE LAW AND LOCAL GOVERNMENT (IJALGOV)
Publisher : Universitas Negeri Surabaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.26740/ijalgov.v3i1.55389

Abstract

This study analysed the evolving role of the Constitutional Court in Decision Number 60/PUU-XXII/2024, which not only annuls legal norms but also establishes new norms regarding regional head candidacy requirements. This condition raises debates concerning the shift of the Constitutional Court's function from a negative legislator to a positive legislator and its implications for the principle of checks and balances within Indonesia's constitutional system. Unlike prior studies, which have remained largely conceptual or focused on the technical implementation of regional elections, this research offers novelty through a critical analysis of the constitutional legitimacy of the Constitutional Court's role in formulating new norms, examined specifically through the lens of checks and balances an angle that remains underexplored in the existing literature. This research aims to analyze the juridical construction of the decision and examine its impact on the balance of power among state institutions. The research employs a normative legal method using statutory, case, and conceptual approaches. The legal materials consist of primary sources, such as legislation and Constitutional Court decisions, and secondary sources, including legal literature and scholarly doctrines, analyzed prescriptively to assess the decision's conformity with the principles of constitutional supremacy and the separation of powers. The findings indicate that Decision Number 60/PUU-XXII/2024 reflects the Constitutional Court's tendency to act as a positive legislator by formulating new candidacy threshold norms a move that, while contributing to democratization, also poses risks of legal uncertainty and a shifting balance of power. These findings reinforce the theoretical argument that the transformation of the Constitutional Court's role necessitates a reformulation of the constitutional limits on judicial authority within a checks-and-balances framework, while opening avenues for strengthening constitutional dialogue between the judiciary and the legislature in Indonesia.
The Replacement of Elected Members of The House of Representatives Prior to Inauguration and Principle of Legal Certainty Valensia Lie; Bachrul Amiq; Zevanya Gerdiman
NOVUM : JURNAL HUKUM Vol. 12 No. 4 (2025): Law as Normative Rationality: Ontological Foundations of Rights, Governance, a
Publisher : Universitas Negeri Surabaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.2674/novum.v12i4.74958

Abstract

General elections are the main means of realizing people's sovereignty in Indonesia's democratic system, which is based on the principle of the rule of law. In practice, legal issues arise regarding the mechanism for replacing elected members of the House of Representatives of the Republic of Indonesia (DPR RI) before their inauguration, especially when the replacement is not entirely based on the highest number of votes. This condition has sparked debate regarding its compatibility with the principles of legal certainty and democracy. This study aims to analyze the compatibility of the mechanism for replacing elected DPR RI members prior to inauguration with the principle of legal certainty and to examine the legal consequences of this practice. The research uses a normative legal method with a legislative, case, and conceptual approach. The legal materials consist of primary legal materials in the form of legislation related to elections and secondary legal materials in the form of literature and legal doctrine. The analysis is conducted in a prescriptive-analytical manner. The results of the study indicate that the provisions on the replacement of elected candidates in Law No. 7 of 2017 on General Elections still contain unclear norms, particularly regarding the reasons for resignation and the authority of political parties in determining replacement candidates. This ambiguity has the potential to cause legal uncertainty, disregard the will of the voters, and reduce the legitimacy of the election results. Therefore, it is necessary to strengthen and affirm election regulations in order to guarantee legal certainty and protect the sovereignty of the people. This article contributes by critically examining the normative ambiguity of pre-inauguration replacement mechanisms and its impact on legal certainty and popular sovereignty.
Co-Authors Anastasia Kayla Ruwiyanto Imelda Ayu Juwita Putri Valensia Lie Zevanya Gerdiman