According to Jimly Asshiddiqie, in United States English, judicial review can be interpreted as a legal effort to challenge or test three legal norms in the form of regeling (regulation), beschikking (decision), and verdict (judgment) through the judiciary. Furthermore, in the concept of judicial review, especially in relation to testing by the judiciary, review means looking at, assessing, or re-examining. If a law is valid as law, then the test is called a judicial review .
Judicial review at the Supreme Court, Article 24A paragraph (2) of the 1945 Constitution gives the Supreme Court the authority to adjudicate at the cassation level, examine statutory regulations under the law against the law, and have other authorities granted by law. Based on Article 31 paragraph (2) of Law 3/2009, the Supreme Court’s decision declared invalid a statutory regulation under the law on the grounds that it conflicted with higher regulations or its formation did not comply with applicable provisions. Referring to this provision, judicial review at the Supreme Court can take the form of formal or material testing. Throughout our research, PERMA 1/2011 only regulates material tests. Article 1 paragraph (1) PERMA 1/2011 explains that what is meant by the right to judicial review is the right of the Supreme Court to assess the content of statutory regulations under the law against higher-level statutory regulations.
To carry out a judicial review at the Supreme Court, it is necessary to submit an objection request, namely a request containing an objection to the enactment of a statutory regulation which is alleged to be in conflict with a higher level statutory regulation which is submitted to the Supreme Court for a decision. If the Supreme Court is of the opinion that the objection request is reasonable, then the Supreme Court grants the objection request. However, if the Supreme Court is of the opinion that the objection request is unreasonable, then the Supreme Court rejects the objection request. Decisions regarding the invalidity of statutory regulations under the law can be taken either in connection with an examination at the cassation level or based on a direct application to the Supreme Court. Then, legislation that is declared invalid does not have binding legal force. The Supreme Court in its decision stated that the legal regulations that were appealed for objection were invalid or did not apply to the public, and ordered the relevant agencies to revoke them immediately. The Supreme Court Clerk includes an excerpt of the decision in the State Gazette. Within 90 days after the Supreme Court decision is sent to the state administrative agency or official that issued the statutory regulation, it turns out that it has not carried out its obligations, and by law, the relevant statutory regulation has no legal force.
In principle, a decision regarding an objection request cannot be submitted for judicial review. This provision is contained in Article 9 PERMA 1/2011. If no legal action can be taken, a decision means that it has permanent legal force (inkracht van gewijsde) and has binding legal force (resjudicata pro veritate habeteur). The judicial review process is equivalent to the level of the judicial review process and the decision status is permanent and legally binding. Thus, the nature of the judicial review decision by the Supreme Court is inkracht van gewijsde or has permanent legal force. If a statutory regulation is granted and declared invalid or not of general application, the requested statutory regulation does not have binding legal force.
However, according to Ni’matul Huda and R. Nazriyah in the book Theory & Testing of Legislative Regulations (p. 143), norms order the relevant agencies to revoke statutory regulations that are declared invalid and do not apply to the public This can cause problems, namely reducing the legal certainty of Supreme Court decisions. This is because the interpretation may arise that the relevant statutory regulations remain in effect because it has not been revoked.
Reference:
- Jimly Asshiddiqqie. Procedural Law for Testing Laws. Jakarta: Constitution Press, 2006;
- Ni’matul Huda and R. Nazriyah. Theory & Testing of Legislative Regulations. Bandung: Nusa Media, 2011;
- Novendri M. Nggilu. Initiating Sanctions for Acts of Constitutional Disobedience against Constitutional Court Decisions. Constitutional Journal Vol. 16 No, 1, March 2019;
- Directory of Supreme Court Decisions regarding the Right to Material Review, accessed on Friday, June 14, 2024, at 09.15 WIB.
Legal basis:
- The 1945 Constitution of the Republic of Indonesia ;
- Law Number 14 of 1985 concerning the Supreme Court as amended by Law Number 5 of 2004 concerning Amendments to Law Number 14 of 1985 concerning the Supreme Court then amended a second time by Law Number 3 of 2009 concerning Second Amendments to the Law -Law Number 14 of 1985 concerning the Supreme Court ;
- Supreme Court Regulation Number 1 of 2011 concerning the Right to Judicial Review.