Observations & Debates

Proportionality Principle in Judicial Review in Indonesia and Germany

Proportionality principle in judicial review is a popular principle in constitutional courts in several countries. This principle has become popular and is considered a general principle because this principle is very helpful for constitutional judges in deciding cases related to loss of citizens, restrictions on rights and open legal policies. Several countries that have adopted the proportionality principle include Germany, Canada, Israel, India and South Korea.
Proportionality principle is a test aid for judges in their efforts to give legal considerations to the policies that are being tested in order to find the right, needed and useful policies. In using this principle, there are aspects or test stages that must be passed. First, legitimate aims, to determine whether the objective of the policy being tested is valid under the constitution. Second, suitability, to find out whether the policies tested between the objectives of the policy have a correlation that supports the fulfillment of these policy objectives. Third, necessity, to find out whether the policy being tested is the one that has the least losses compared to other policy alternatives. Fourth, balancing in narrow sense, to find out whether the policies being tested have benefits and advantages that are greater than the losses that have been issued.
The importance of the proportionality principle in judicial review is shown by the presence of this principle to assist judges in providing legal considerations not only to interpret or quote articles, but to elaborate the basis of the petition more deeply, namely the loss of citizens who underlie the application for judicial review itself. Starting from this, the view shifted to the Constitutional Court of the Republic of Indonesia (MKRI). In Indonesia, many requests related to citizen loss, restriction of rights and open legal policies have been submitted to the MKRI such as death penalty policy for drug convictions, labor-related policies and DPR’s open legal policy in determining the Presidential Threshold. However, the question is whether the Constitutional Court has adopted and used the principle of proportionality when examining these matters. This needs to be analyzed in order to know the extent to which the Constitutional Court has decided the case fairly and proportionally.
The analysis carried out was in the form of a comparative study between Indonesia and Germany. Germany was chosen as the country of comparison because Germany is a country whose proportionality principle in theory and experience develops dynamically in the application of this principle. There are main points that can be compared, namely the principle of proportionality in the 1945 Constitution (Constitution) and its development in the two countries.
From the results of the analysis of the theory and practice of the two countries, it has been found similarities and differences in the principle of proportionality in the constitutional court. The similarities found are, firstly, the proportionality principle is neither explicitly regulated in the Constitution nor the 1949 Grundgesetz. Second, this principle is in the meaning of Article 28J paragraph (2) of the Constitution, as well as Article 1 paragraph (3) and Article 2 of 1949 Grundgesetz. Third, constitutional judges are not obliged to use the principle of proportionality in judicial reviews. Regarding the third similarity, although neither is required, there are differences in practice.
The first difference in the proportionality principle between Indonesia and Germany is the courage of judges in using the principle of proportionality. Although proportionality principle is not obliged to be used in Germany, in fact, this principle has become a general principle accepted in Germany. Judges are free to use this principle and in fact, everytime the judge gives legal considerations related to citizen losses, limitation of rights and open legal policies, the judge uses the principle of proportionality. Meanwhile in Indonesia, the Constitutional Court has not used this principle in every judicial review case. The second difference is the different aspects or stages of testing. In Germany there are only three, namely suitability, necessity, and balancing in narrow sense. Meanwhile, in Indonesia there are no such testing aspects. Third, the scope of the subject which has a meaning. In Germany it has developed not only the state versus the citizen, but also the interests between citizens. Meanwhile in Indonesia, there has been no development. Fourth, the development of the proportionality principle. In Germany the principle has developed rapidly in theory and experience. Meanwhile in Indonesia, the Constitutional Court of Indonesia has not immediately adopted these principles, so there is no development of these principles in Indonesia.
From the abovementioned explanation, it can be concluded that in Indonesia, the MKRI has not necessarily adopted the principle of proportionality. Meanwhile, the reality shows that the number of requests for judicial reviews related to losses to citizens, restrictions on rights and open legal policies is increasing. This has become the urgency that MKRI requires these principles so that judges do not just interpret or quote articles of the Constitution, but examine more deeply the losses presented to the Constitutional Court as the basis for the petition. Thus, judicial reviews related to losses to citizens, restrictions on rights and open legal policies can be decided fairly and the problem, namely the loss of citizens, can be resolved.
In order to support the Constitutional Court to adopt the principle of proportionality as a tool in every trial, it is very necessary that this proportionality principle be accommodated in the Laws and Regulations of the Constitutional Court as an alternative variant to judges in judicial review. In addition, the principle of proportionality should be considered as one of the principles in the procedural law of the Constitutional Court. This may encourage MKRI to develop a concept of the principle of proportionality according to the characteristics of the MKRI itself. However, the use of the proportionality principle does not intend to oblige judges to always use the proportionality principle in examining laws considering that the freedom of judges in deciding a case is judicial independence. This independence is included in determining which interpretation, principle or method he will choose to decide a case. Therefore, the judge is still given a choice in its use.

Alumnus of the Faculty of Law, Airlangga University

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