The Constitutional Court is not a constitution maker, but the Court has the influence and role in developing law through decisions. The examination of laws by the Constitutional Court using constitutional testing instruments is an activity of constitutional adjudication. Constitutional adjudication is basically how the courts work against the constitution. In other words, adjudication is about how the judge decides or should decide cases in constitutional adjudication. This is generally included in the discussion of the theory of judging. Based on the principle of independence of the judiciary and the principle of impartiality, judicial review will never position the role of the judge as only the mouthpiece of the law. Adjudication to test the constitutionality of laws gives a big role to judges not only to assess whether the law is contrary to the constitution, but even to interpret the constitution in order to test the constitutionality of the law.
In the context of the government system, the Constitutional Court decisions have an important role in defining the government system. After the amendments, one of the basic agreements to amend the 1945 Constitution is to affirm the presidential system of government, which results in the following order: to determine a fixed presidential term followed by regulations regarding impeachment only for constitutional reasons; direct election by the people so that the President is not accountable to the assembly / representative body; The president is the head of government as well as the head of state, emphasizing the separation of powers which is at least marked by the affirmation of the power to form laws by the DPR; the position of minister is appointed and dismissed by the President, an advisory institution that is not separate as a state institution itself, but is formed by the President. What is the face of the presidential system in Indonesia, strengthening, weakening or very strong?
The answer lies in two domains, namely how the legislation interprets and transmits it in the form of laws and how court decisions. In the context of the Constitutional Court, the decision spans from the issue of the electoral system which includes constitutional issues regarding the presidential candidacy threshold, voting time for general elections, the establishment of political parties, regarding state ministries and also matters related to the power of the President, especially in the context of prerogative rights. . In a broader framework that also coincides with the issue of the presidential framework, the Constitutional Court decisions also relate to the power to form laws. All legal considerations (ratio decidendi) in these decisions show the views and stance of the Constitutional Court on the issue of strengthening the presidential system. With its ‘decisive’ position, the Constitutional Court has a role in “interpreting” what the presidential system is and how strengthening the presidential system should be done through the institutionalization of norms in law. Several Constitutional Court decisions that are relevant and affect the presidential system include:
- Within the scope of the Election system: The Constitutional Court Decision No. 50 / PUU-XII / 2014 Constitutional Court Decision: No. 44 / PUU-XV / 2017, No. 53 / PUU-XV / 2017, No. 59 / PUU-XV / 201 and Number 14 / PUU-Xl / 2013
- The Party System: The Constitutional Court Decision No. 12 / PUU-VI / 2008, No. 52 / PUU-X / 2012
- Establishment and Management of the Cabinet: Constitutional Court Decision No. 79 / PUU-IX / 2011
From these decisions, the need to carry out an inventory, analysis and classification of the Constitutional Court decisions regarding the idea of ​​strengthening the presidential system in the Indonesian constitutional system will be able to measure what has been built by the Constitutional Court in the constitutional narrative regarding strengthening the presidential system. The study of the Indonesian presidential system, which departs from theory and evaluation in the empirical realm with the perspective of political science, can be said that there are quite a lot of studies available as well as presidentialism studies seen from the electoral system carried out. , not much has been done. In the context of decision-based legal development, this will result in cases (court based approach) towards a legal systematization regarding the issue of strengthening the presidential system of government.
Researcher at the Center for Constitutional and Governance Studies at the Faculty of Law, Airlangga University
Email: syaiful@fh.unair.ac.id
