Executability of the constitutional court decision

International Journal of Advanced Science and Technology
Vol. 28, No. 15, (2019), pp. 816-823
816
ISSN: 2005-4238 IJAST
Copyright ⓒ 2019 SERSC
EXECUTABILITY OF THE CONSTITUTIONAL COURT DECISION
REGARDING GRACE PERIOD IN THE FORMULATION OF
LEGISLATION
Abdul Kadir Jaelani1
, I Gusti Ayu Ketut Rachmi Handayani 2
, Lego Karjoko3
1,2,3
Universitas Sebelas Maret, Surakarta – Indonesia
1
Universitas Slamet Riyadi, Surakarta - Indonesia
Abstract--This study is initiated by many decisions of the Constitutional Court that are not
implemented, even though the nature of the decisions of the Constitutional Court is final and binding.
The type of research used is normative legal research. This study is descriptive. The type of data used
is secondary data. Secondary data collection techniques were obtained through literature review. The
primary and secondary data were analyzed qualitatively. The results of the study show that first, the
Constitutional Court Decision is not implementative when the decision does not include a grace
period for its implementation, whereas the Constitutional Court Decision which includes a grace
period is followed up very quickly by the legislators. Second, the model of the Constitutional Court
Decision which is executable in the future is the Constitutional Court Decision which includes a grace
period and institutionalization of constitutional question through the addition of the authority of the
Constitutional Court.
Keywords—Constitutional Court, Grace Period, Constitutional Question.
I. Introduction
Judicial review is an act of testing by the Constitutional Court to examine the constitutionality of a
law, both in whole and in part. The constitutionality test referred to uses the constitution, which is the
Constitution of the Republic of Indonesia of 1945 as its testing tool. The law is declared constitutional
when the norm is in accordance with the norms of the Constitution of the Republic of Indonesia of
1945, and declared unconstitutional when it is the opposite.[1] Data from the Constitutional Court
show that the total numbers of Judicial Review cases handled by the Constitutional Court from 2003
to September 2019 were 1,959 cases and 1,258 cases were decided.[2] The data also show that
parliamentary and government institutions continue to produce written regulations in the form of laws
so that they are over-regulated, overlapping, disharmony, having multiple interpretations, conflictual
and disobedient. In addition, the legal products that are issued by legislators are still ideologically
flawed. In other words, the quality of legal products is strongly related to content that is contrary to
the constitution, is not participatory, aspirational and accountable.[3]
Under these conditions, the product of legislation should not be allowed oppose the constitution.
Because if this continues, there will be a process of constitutional delegitimation, violations of the
constitutional rights of citizens, and may even lead to the collapse of democracy. Consequently, the
Constitutional Court is demanded to play its role through the authority of judicial review because it is
believed that it will be a counterweight in controlling the legislation product that is contradictory to
the constitution. In this case, the control in the form of judicial review can be a means to carry out the
purification of the law produced by the legislative institution so that it does not harm the public.[4]
The Constitutional Court Decision is final, but the fact shows that the final The Constitutional
Court Decision is often not responded positively by other state institutions, the final decision is often
get a fierce challenge from a few of non-judicial state actors.[5] Borrowing Hamilton’s opinion, [6]
the judiciary is the weakest branch, even to be able to execute its decision, the judiciary must be

Vol. 28, No. 15, (2019), pp. 816-823
817
assisted by the executive and legislative branches, because the executive has the sword (weapon),
while the legislature determines the state finances (wallet). On the other hand, the judicial branch is
only authorized to decide cases.[7] As a result, the Constitutional Court Decision is not implemented
because it is always confronted by the complexity of the issues that arise at the application stage of
the final decision, even the final The Constitutional Court Decision is often distorted by the legislative
institution in forming legislation.[8]
Epistemologically, the problem becomes interesting because the Constitutional Court Decision is
final and binding, but only on paper, without any guarantee and mechanism to be implemented.
According to Fajar Laksono Suroso,[9] this problem is clearly seen in the Constitution of the
Republic of Indonesia of 1945 which illustrates that there is an imbalance of relations between the
Constitutional Court and the DPR, DPD and the President as the legislators. Even the Constitution of
the Republic of Indonesia of 1945 and the Law of Constitutional Court do not include rules on how
the Constitutional Court Decision is implemented, both regulations only contain a statement that the
Constitutional Court has the authority to adjudicate at the first and last level whose decisions are final
and have the force of law since they are finished being pronounced in a public plenary session open to
the public. Article 59 paragraph (2) of Law Number 8, 2011 concerning the Constitutional Court that
states the DPR and the President will only follow up on the Constitutional Court Decision if
necessary.[10] Even the final The Constitutional Court Decision of the Republic of Indonesia will
find a long way to go, when it does not contain a grace period for the implementation of the decision
by the legislators.[11]
The action was clearly seen in a number of decisions including; 1) the Constitutional Court
Decision Number 36/PUU-X/2012 concerning Judicial Review of Law Number 22, 2001 concerning
Oil and Gas, 2) the Constitutional Court Decision Number 28/PUU-XI/2013 concerning Judicial
Review of Law Number 17, 2012 concerning Cooperatives, and 3) the Constitutional Court Decision
Number 85/PUU-XI/2013 concerning Judicial Review of Law Number 7 of 2004 concerning Water
Resources. The decision revoked the provisions in the legislation that were the object of review, but
did not include a grace period for the implementation of the decision by the legislators. As a result,
the decision negated the meaning of Article 24C Paragraph (1) of the Constitution of the Republic of
Indonesia of 1945 which stated that the Constitutional Court has the authority to adjudicate at the first
and last level which the decision is final to review the law against the Constitution. On the one hand,
the follow-up to the decision requires action from the legislators through a non-self executing
process.[12]
Different actions were shown by the legislators who responded to the Constitutional Court
Decision which included a grace period for the implementation of the decisions by the legislators. For
example, first, the Constitutional Court Decision Number 32/PUU-XI/2013 concerning Judicial
Review of Law Number 2, 1992 concerning Insurance Business, second, the Constitutional Court
Decision Number 22/PUU-XV/2017 concerning Judicial Review of Law Number 1, 1974 on
Constitution of the Republic of Indonesia of 1945. The first decision affirmed to the legislators to
follow up on the decision no later than two years and six months after the decision was pronounced.
The second decision ordered the legislators to follow up on the decision no later than 3 (three) years
after the Constitutional Court Decision was pronounced. This decision model is non-self executing,
meaning that this decision cannot be implemented directly but the Constitutional Court expressly
provides a time limit for the legislators to carry out the decision. This paper will discuss the
executablity of the Constitutional Court Decision which includes a grace period in the formulation of
legislation as well as solutions offered in the future to resolve the issue.
II. Research Method

Vol. 28, No. 15, (2019), pp. 816-823
818
This type of research used in compiling this study is normative legal research completed with
interviews. Thus, what was examined initially was the secondary data, then continued with interviews.
Normative legal research prioritizes literature study, the activity of collecting data from various
literatures both from libraries and other places.[13] This normative legal research focuses on the
principles of law, legal systematics, legal synchronization, legal history in the formation of the
Constitutional Court and state institutions in Indonesia.[14] This research uses secondary data. The
secondary data collection tools were in the form of books relating to theory and concept of research
objects, related articles, literature on scientific papers and so on through literature study.[15] Data
analysis used in this study is a qualitative analysis which is then presented in a descriptive form.
Qualitative analysis is done through categorization based on the problems studied and data collected.
[16]
III. Discussion
1. Follow-up on the Constitutional Court Decision that Does Not Include the Grace Period in the
Formulation of Legislation
Table 1
Follow Up on the Constitutional Court Decision that Does Not Include the Grace Period
Decision Model Form of Follow Up
La
w
Government
Regulation/Presidential
Regulation
Ministerial Regulation
The Constitutional
Court Decision
Number 36/PUU-
X/2012 concerning
Law Number 22,
2001 concerning
Oil and Gas.
Non Self
Executin
g
- Presidential Regulation
Number 95, 2012
concerning the Transfer
of the Implementation of
Duties and Functions of
Upstream Oil and Gas
Business Activities
of Energy and Mineral
Resources Number 17,
2017 concerning the
Organization and
Special Work
Procedures for
Business Activities.
Presidential Regulation
Number 9, 2013
concerning Management
of Upstream Oil and Gas
Business Activities
of Energy and Mineral
Resources Number 53,
2017 concerning the
Organization and
Special Work
Procedures for the
Implementator of
Business Activities.
Presidential Regulation
Number 36, 2018
concerning Amendment
to Presidential Regulation
Number 9, 2013
concerning
Implementation of
Management of Upstream
Oil and Gas Business
Activities
The Constitutional
Court Decision
Non Self
Executin
- - Ministerial Regulation
of Cooperatives and

Vol. 28, No. 15, (2019), pp. 816-823
819
Number 28/PUU-
XI/2013 concerning
Judicial Review
Number 17 of 2012
concerning
Cooperatives.
g Small and Medium
Enterprises Number
10/Per/M.KUKM/IX/2
015 concerning
Institutional
Cooperatives.
of of Cooperatives and
Small and Medium
Enterprises Number
11/Per/M.KUKM/IX/2
015 concerning
Guidelines for
Implementing Capital
Investment Inclusion
in Cooperatives
of of Cooperatives and
Small and Medium
Enterprises Number
15/Per/M.KUKM/IX/2
015 concerning
Savings and Loans of
Cooperatives
The Constitutional
Court Decision
Number 85/PUU-
XI/2013 concerning
Judicial Review
Number 7, 2004
concerning Water
Resources
Non Self
Executin
g
- Government Regulation
Number 121, 2015
concerning Water
Resources Exploitation
Regulation of the
Minister of Public
Works and Public
Housing Number
09/PRT/M/2015
concerning Use of
Water Resources.
Government Regulation
Number 122, 2015
concerning Management
of Drinking Water Supply
Systems
Regulation of the
Minister of Public
Works and Public
Housing Number
06/PRT/M/2015
concerning
Exploitation and
Maintenance of Water
Sources and
Waterworks Building
Source: JDIH of Board of Trustees of National Law of Ministry of Law and Human Rights of
Republic of Indonesia 2019
The data show that the follow-up of the Constitutional Court Decision that does not include the
grace period is still temporary, because the follow-up of the Constitutional Court Decision must be in
the form of Law, because the Constitutional Court reviews the Law that is contrary to the Constitution

Vol. 28, No. 15, (2019), pp. 816-823
820
of the Republic of Indonesia of 1945. Besides, for regulations in the form of Regulations under the
Law in the form of Presidential Regulations and Ministerial Regulations are temporary, until the Law
is passed. The follow up of the Constitutional Court Decision by the Government and the House of
Representatives through the Legislative Board and the Minister of Law and Human Rights in the form
of a cumulative Bill because the Constitutional Court Decision had been issued in the priority
National Legislation Program in 2013.
However, until 2017, the Bill was only at the planning stage, whereas based on the provisions of
Article 1 paragraph (1) of Law Number 12, 2011 concerning Formulation of Legislation, it is stated
that the Formulation of Legislation is the formulation of Legislation covering the stages of planning,
drafting, discussion, ratification or stipulation, and enactment. In 2018, the decision was followed up
in the form of a Bill, but there was no significant progress. Based on the House of Representatives
Decree Number 19, 2019 concerning the National Legislation Program of Priority Bill of 2019 and
Amendments to the National Legislation Program of Bill of 2015-2019, the Bill had reached the
discussion stage and was awaiting the completion of the determination to become the DPR Initiative
Bill. Thus, in 2013 to 2018, the Constitutional Court Decision that did not include a grace period was
not followed up into the law, but followed up in the Presidential Regulation and Ministerial
Regulation.
2. Follow-up on the Constitutional Court Decision that Includes the Grace Period in the Formulation
of Legislation
Table 2
Follow-up on the Decision of Constitutional Court that Includes the Grace Period
DECISION Model Form of Follow Up
Law Presidential Regulation
The Constitutional
Court Decision Number
32/PUU-XI/2013
concerning Judicial
Review of Law Number
2, 1992 concerning
Insurance Business
Non Self
Executing
Law Number 40, 2014
concerning Insurance.
Government Regulation
Number 14, 2018
concerning Foreign
Ownership on Insurance
Companies
The Constitutional
Court Decision Number
22/ PUU-XV/2017
concerning Judicial
Review of Law Number
1, 1974 concerning
Marriage.
Non Self
Executing
- -
Source: JDIH of Board of Trustees of National Law of Ministry of Law and Human Rights of
Republic of Indonesia 2019
The data show that the follow-up of the Constitutional Court Decision that includes the grace
period was responded quickly by the legislators. This can be seen in the amendment of Law Number
2, 1992 concerning Insurance Business to Law Number 40, 2014 concerning Insurance. In addition,
based on the House of Representatives Decree Number 19, 2019 concerning the National Legislation

Vol. 28, No. 15, (2019), pp. 816-823
821
Program of Priority Bill of 2019 and Amendments to the National Legislation Program of Bill of
2015-2019, the follow-up of the Constitutional Court Decision Number 22/PUU-XV/2017 concerning
Judicial Review of Law Number 1, 1974 concerning Marriage in the form of a Bill had reached the
discussion stage and was awaiting the completion of the ratification. Thus, obedience to the legislators
to the Constitutional Court Decision that includes the grace period was very high and even the
Constitutional Court Decision was implementative, when it reached the application stage, the
Constitutional Court Decision was not blocked by so many obstacles that interfere with the execution
of the decision.
3. Model of the Constitutional Court Decision that are Executable in the Future
Bede Harris said that the doctrine of constitutionalism in the state referring to law can be known
whether implemented or not, from the respect and implementation of court decisions. Thus,
conclusions can be drawn that the neglect of court decisions is similar to a denial and betrayal of the
principles of state referring to law. Therefore, several alternative steps are needed to make the
Constitutional Court as a constitutional guard institution whose decisions are also obeyed and
followed-up:[17]
1) Grace Period for the Implementation of the Decisions
Article 47 of Law Number 8, 2011 jo. Law Number 14, 2003 concerning the Constitutional
Court affirms that “The Constitutional Court Decision obtains permanent legal force since it
was pronounced in a plenary session open to the public”. This shows that since the completion
of the decision was pronounced or read, then from then on, the decision must be implemented.
This situation will clearly complicate the addressat of the decision to follow up on the
Constitutional Court Decision. It is impossible for the Constitutional Court Decision to be
followed up immediately after the decision was read.[18]
It takes a process and time to follow up on the decision. This is especially related to
legislative institutions that require new legal instruments in the form of revisions or even new
laws, even though the formulation of laws has formal procedural characteristics. The
implementation of the Law concerning the People’s Consultative Assembly, the People’s
Representative Council, the Regional Representative Council, and the Regional People’s
Representative Council are examples of the time needed to revise and implement the decisions
of the Constitutional Court. In fact, efforts to implement it in certain circumstances cannot be
directly revised by law, the addressat of the decision is not infrequently must hold a
consultation meeting or discussion with the Constitutional Court to find out the original intent
of the decision. This shows that the Constitutional Court Decision does not necessarily be
carried out immediately when finished reading in a plenary session that is open to the
public.[19]
2) Constitutional Question
The term constitutional question is a mechanism to review the constitutionality of laws in
which a judge from the Supreme Court or the legislator who is in the process of judging or
forming a case evaluates or doubts the constitutionality of the law applicable to a case, so he
submits constitutional question to the Constitutional Court regarding the constitutionality of the
law.[20] Constitutional question is also interpreted as a mechanism to review concrete norms,
when a judge from an ordinary court is deciding a case and he believes that the law to be

Vol. 28, No. 15, (2019), pp. 816-823
822
applied in the case is against the constitution, then he must submit a question to the
Constitutional Court. [21]
Borrowing I Dewa Gede Palguna opinion, the constitutional question mechanism in the
constitutional justice system is part of providing maximum protection for citizens’
constitutional rights. Such protection is an indispensable requirement in every (democratic)
state referring to law. The normalization of the constitutional question mechanism has not yet
been institutionalized in the Constitutional Court of the Republic of Indonesia. As a result, the
space for Judicial Review is still very narrow, that is, it only reaches the review of abstract
norms and does not yet regulate the review of concrete norms or constitutional questions. In
fact, various cases of the Supreme Court decision that deviate from the Constitutional Court
Decision began with the constitutionality issue of a statutory regulation in the litigation and
non-litigation processes in the judiciary under the Supreme Court.[22]
IV. Conclusion
Based on the results of the discussion, the following conclusions can be drawn. First, the
Constitutional Court Decision is not implementative when it does not include a grace period for the
implementation. As a result, the Constitutional Court Decision negates the meaning of Article 24C
Paragraph (1) of the Constitution of the Republic of Indonesia of 1945 which states that the
Constitutional Court has the authority to adjudicate at the first and last level, in which the decision is
final to review the law against the Constitution. Whereas different actions are shown by the legislators
who respond to the Constitutional Court Decision which includes a grace period for the
implementation of the decisions by the legislators.
References
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Constitutional Review, May 2017, Volume 3, Number 1.
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Legislation “, International Journal of Business, Economics and Law, Vol. 9, Issue 4 , April
2016.
[3] Syukri A, Meyrinda. R.H, Mohammad. M.A, “Model dan Implementasi Putusan Mahkamah
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Kemungkinan Penerapannya Di Indonesia”, Jurnal Hukum, Vol. 17 Number 1, January 16, 2010.
[20] Bambang A.K, Abdul.K.J, “Mengagas Constitutional Complaint dalam Konstitusi Indonesia dan
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Pelanggaran Hak-Hak Konstitusionalitas Warga Negara. Jakarta: Sinar Grafika. 2013.

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