Published by The Registrar and Secretariat General of the Constitutional Court of the Republic of Indonesia Volume 21 Issue 3.
September 2024 ISSN (Prin.
1829-7706 ISSN (Onlin.
2548-1657 Journal Homepage: https://jurnalkonstitusi.
Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus Muwaffiq Jufri 1 .
Paul Atagamen Aidonojie 2 .
Agung Ali Fahmi3 Lin Asyiqoh 4 , and Oluwaseye Oluwayomi Ikubanni 5 Fakultas Hukum.
Universitas Trunojoyo Madura.
Bangkalan.
Indonesia Kampala International University School of Law.
Kampala.
Uganda.
Fakultas Hukum.
Universitas Brawijaya.
Malang.
Indonesia Sekolah Tinggi Ilmu Ekonomi Bakti Bangsa.
Pamekasan.
Indonesia Faculty of Law Joseph Ayobabalola University.
Ikeji-Arakeji.
Osun State.
Nigeria Article Info Abstract Corresponding Author:
Muwaffiq Jufri uO muwaffiq.
jufri@trunojoyo.
History:
Submitted: 20-09-2023 Revised: 04-03-2024 Accepted: 09-09-2024 Keyword:
Standardisation of Legislation.
Constitutional CourtAos Decisions.
Judicial Review.
Omnibus Law Kata Kunci:
Standardisasi Produk Hukum.
Putusan Mahkamah Konstitusi.
Pengujian Undang-Undang.
Omnibus Law.
The re-examination of the Job Creation Law in 2023 highlights a serious issue in the national legislative system, specifically the follow-up to the Constitutional CourtAos (MK) decisions in judicial review cases (PUU) concerning the Omnibus Law.
The urgency of this research stems from the high demand among lawmakers for drafting laws in the omnibus format and the potential for judicial review of such laws.
This research contributes to addressing the follow-up to the Constitutional CourtAos decisions by focusing on the choice of legislative forms as a response to these rulings.
The research employs normative legal methods with conceptual, legislative, and case-based The findings emphasize the need to standardise the type of regulation to ensure the executability of the Constitutional CourtAos The ideal regulatory form for implementing the CourtAos rulings on the Omnibus Law is a law.
Therefore, it is necessary to legitimise the use of laws as the standard form of follow-up to the Constitutional CourtAos decisions on the Omnibus Law to maximise the executability of these rulings.
Abstrak Copyright A 2024 by Jurnal Konstitusi.
All writings published in this journal are personal views of the authors and do not represent the views of the Constitutional Court.
doi https://doi.
org/10.
31078/jk2132 Pengujian kembali Undang-Undang Cipta Kerja pada tahun 2023 menandakan adanya permasalahan serius dalam sistem legislasi nasional, khususnya terkait tindak lanjut Putusan Mahkamah Konstitusi (MK) tentang Pengujian Undang-Undang (PUU) Omnibus.
Penelitian ini penting dilakukan karena penyusunan undang-undang dengan format omnibus semakin diminati oleh pembuat undang-undang, serta adanya potensi judicial review.
Penelitian ini berkontribusi kepada addressat putusan MK, yaitu terkait dengan pilihan bentuk legislasi yang tepat untuk menindaklanjuti putusan PUU omnibus.
Penelitian ini menggunakan metode penelitian hukum normatif dengan pendekatan konseptual, perundang-undangan, dan kasus.
Hasil penelitian menunjukkan bahwa diperlukan standardisasi jenis regulasi untuk menjamin eksekutabilitas putusan MK.
Jenis regulasi yang paling ideal sebagai tindak lanjut atas Putusan MK tentang PUU Omnibus adalah undang-undang.
Oleh karena itu, legitimasi atas gagasan undangundang sebagai bentuk tindak lanjut atas Putusan MK tentang PUU Omnibus perlu ditegaskan, dengan harapan dapat memaksimalkan eksekutabilitas putusan MK.
Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law
Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus
INTRODUCTION
Background Since the enactment of Law Number 6 of 2023 concerning the Ratification of Government Regulation in Lieu of Law Number 2 of 2022 on Job Creation (Job Creation Law 2.
, various labor organizations have filed lawsuits with the Constitutional Court (MK), challenging the validity of Law Number 6 of 2023.
1 Previously, a coalition of labor organizations had similarly filed a lawsuit against Law Number 11 of 2020 on Job Creation (Job Creation Law 2.
, in which the Constitutional Court ruled in favor of the petitioners.
In its decision, the Court held that the establishment of the Job Creation Law was unconstitutional and would not have binding legal force unless it was interpreted as Auno improvement has been made within two .
years from the date this decision was rendered.
Ay2 The issuance of the 2023 Government Regulation in Lieu of Law on Job Creation (Perppu on Job Creation 2.
cannot be considered a violation of Constitutional Court Decision No.
91/PUU-XVi/2020.
3 This is because the current regulatory framework for the formation of legislation lacks specific guidelines regarding the type of legal instrument that should be used to comply with the CourtAos decisions, particularly those related to judicial review.
Article 24C paragraph .
of the 1945 Constitution of the Republic of Indonesia (UUD NRI 1.
merely emphasizes that the CourtAos decisions are final and binding, without specifying the appropriate legal product required for implementing such decisions.
This absence of clear regulatory guidance underscores the need for a standardized approach to ensure compliance with final and binding rulings.
In this context, the parties addressed by the decision may further regulate the implementation of the Constitutional CourtAos ruling.
Several Constitutional Court decisions have been followed up with various legal instruments, including amendments to existing laws, the creation of new laws, the issuance of Government Regulations (PP).
Presidential Tunggul Anshari Setia Negara.
Syahriza Alkohir Anggoro, and Imam Koeswahyono.
AuIndonesian Job Creation Law: Neoliberal Legality.
Authoritarianism and Executive Aggrandizement Under Joko Widodo,Ay Law and Development Review 17, no.
1 (February 26, 2.
: 155Ae97, https://doi.
org/10.
1515/ldr-2023-0022.
Sulistyowati Sulistyowati et al.
AuGovernment Regulation Substituting the Law on Job Creation in the Perspective of Constitutional Law,Ay Jurnal Hukum 39, no.
2 (December 29, 2.
: 231, https://doi.
org/10.
26532/jh.
Dharma Setiawan Negara.
Lufsiana Lufsiana, and Samuel Dharma Putra Nainggolan.
AuConstitutionality of PERPU Number 2 of 2022 Concerning Job Creation Based on the Ruling of the Constitutional Court Number 91/PUU-XVi/2020,Ay Al-Daulah Jurnal Hukum Dan Perundangan Islam 13, no.
1 (April 1, 2.
159Ae79, https://doi.
org/10.
15642/ad.
Iskandar Muda.
AuFollow-up of Law-Making State Institutions to the Legal Message of the Constitutional Court Decision,Ay Jurnal Konstitusi 20, no.
1 (March 25, 2.
: 19Ae35, https://doi.
org/10.
31078/jk2012.
Mohammad Agus Maulidi.
AuProblematika Hukum Implementasi Putusan Final Dan Mengikat Mahkamah Konstitusi Perspektif Negara Hukum,Ay Jurnal Hukum Ius Quia Iustum 24, no.
: 535Ae57, https:// org/10.
20885/iustum.
Jurnal Konstitusi Volume 21 .
2024 Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus Regulations (Perpre.
Ministerial Regulations.
Supreme Court Regulations.
Circular Letters, and, in certain instances.
Government Regulations in Lieu of Law (Perpp.
, as exemplified by Constitutional Court Decision No.
91/PUU-XVi/2020.
The various forms of legal products used as a follow-up will also impact whether the CourtAos decision is implemented.
If followed up with a law revision, it is likely to accommodate the material intended in the Constitutional CourtAos decision.
It becomes problematic if the follow-up is in the form of legal products under the constitution without changing or improving the content of the article considered problematic, as it may still be used as a legal basis for the issuance of technical policies, whose legal products are usually in the form of decisions and/or circular letters.
7 Moreover, following up on the CourtAos decision through a Circular Letter can reduce the significance of the decision, as Circular Letters are not laws or regulations, as they do not contain norms, confer authority, or create binding legal stipulations.
The variety of legal instruments used as a follow-up to the Constitutional CourtAos decision can diminish the authority of the decision, making its implementation less effective or even unattainable.
In this context, standardising the form of legal instruments as a follow-up to Constitutional Court decisions is essential to ensure the enforceability of such 9 The enforceability of these decisions directly impacts the stability of government performance in specific areas addressed by the CourtAos rulings.
10 This stability is achieved through government compliance with the CourtAos decision and the accommodation of public interests following the issuance of the ruling, thereby minimising potential opposition and The ideal legal instrument for following up on the CourtAos decision in judicial reviews of laws, particularly those with an omnibus character, is through amendments or the Mohammad Mahrus Ali and Meyrinda Rahmawaty Hilipito dan Syukri Asy.
AuTindak Lanjut Putusan Mahkamah Konstitusi Yang Bersifat Konstitusional Bersyarat Serta Memuat Norma Baru (The Implementation of Constitutional Court Verdict on Conditionally Constitutional and New Legal Nor.
,Ay Jurnal Konstitusi, 12, 3 .
: 637, https://doi.
org/10.
31078/jk12310.
Lalu Hedwin Hanggara.
AuDiskursus Keberlakuan UU Cipta Kerja Pasca Putusan Mahkamah Konstitusi Nomor 91/PUU-XVi/2020,Ay Al-Qisth Law Review 5, no.
: 233Ae60, https://doi.
org/10.
al-qisth.
Tri Sulistyowati.
Ali Ridho, and M Imam Nasef.
AuConstitutional Compliance Solution to Law Testing Rulings in the Constitutional Court,Ay Jambura Law Review 3, no.
Spesial Issue (Apri.
(May 1, 2.
: 117Ae34, https://doi.
org/10.
33756/jlr.
Abdurrachman Satrio.
AuConstitutional Retrogression in Indonesia Under President Joko WidodoAos Government: What Can the Constitutional Court Do?,Ay Constitutional Review 4, no.
2 (December 31, 2.
271, https://doi.
org/10.
31078/consrev425.
Gusti Ayu Ketut Rachmi Handayani.
Lego Karjoko, and Abdul Kadir Jaelani.
AuModel Pelaksanaan Putusan Mahkamah Konstitusi Yang Eksekutabilitas Dalam Pengujian Peraturan Perundang-Undangan Di Indonesia,Ay Bestuur 7, no.
: 36Ae46, https://doi.
org/10.
20961/bestuur.
Mukhlis et al.
AuRejection of Former Shia Community in Sampang Perspective on Human Rights Law:
Discourse of Religious Rights and Freedom in Indonesia,Ay Lex Scientia Law Review 7, no.
: 237,
https://doi.
org/https://doi.
org/10.
15294/lesrev.
Jurnal Konstitusi Volume 21 .
2024 Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus formation of new regulations.
However, this process can take considerable time, as it involves extensive stages and discussions.
Meanwhile, the structure of the Omnibus Law, which consolidates various laws, is urgently needed by many stakeholders because it ensures legal certainty across several regulatory areas unified within the Omnibus Law.
In this context, the follow-up to the CourtAos decision must be expedited to safeguard the legal certainty of the many parties reliant on the provisions of the Omnibus Law.
The model for ensuring both accuracy and expediency in the legal instruments that follow up on the CourtAos decisions regarding the judicial review of omnibus laws must be immediately developed and implemented, considering that this legislative method will continue in the future with the inclusion of omnibus law provisions in Law No.
13 of 2022, which amends Law No.
12 of 2011 on the Formation of Legislation.
13 These changes signify that the opportunity to create laws with an omnibus character will be significantly One notable example is the Omnibus Law in the health sector, which has already faced considerable opposition and has the potential to be challenged in the Constitutional Court.
14 Therefore, the reconstruction of regulations as a follow-up to the Constitutional CourtAos decisions on judicial reviews of omnibus laws must be promptly addressed.
solution must be found to ensure that governmental stability and the protection of citizensAo constitutional rights are maintained following the CourtAos rulings.
The standardisation of the legal instruments used to follow up on the CourtAos decisions in judicial reviews of omnibus laws is primarily applicable to decisions involving a material review, particularly for decisions that introduce new norms or are conditionally 17 This is because such decisions require the legislature to amend or implement the ruling delivered by the Constitutional Court.
18 Although the current judicial review of the omnibus law pertains only to a formal review, anticipatory measures should Sodikin.
AuParadigma Undang-Undang Dengan Konsep Omnibus Law Berkaitan Dengan Norma Hukum Yang Berlaku Di Indonesia,Ay Jurnal Rechts Vinding: Media Pembinaan Hukum Nasional 9, no.
: 143Ae59, https://doi.
org/10.
33331/rechtsvinding.
NiAomatul Huda.
Idul Rishan, and Dian Kus Pratiwi.
AuFast-Track Legislation: The Transformation of LawMaking Under Joko WidodoAos Administration,Ay Yustisia Jurnal Hukum 13, no.
1 (April 30, 2.
: 117, https://doi.
org/10.
20961/yustisia.
Audy Amelia Siregar.
AuLegal Studies on Omnibus Law Issues in Indonesia,Ay International Asia Of Law and Money Laundering (IAML) 1, no.
4 (October 21, 2.
: 270Ae78, https://doi.
org/10.
59712/iaml.
Sri Lester.
AuKajian UU Cipta Kerja Terhadap UU Kesehatan Dan UU Tenaga Kesehatan,Ay Magistra Law Review 2, no.
: 21Ae39.
Sardjana Orba Manullang.
AuIndonesian Law and Human Rights ExpertAos View on The Constitutional CourtAos Decision Against the Manpower Law from The Omnibus Law,Ay Linguistics and Culture Review 6, no.
(December 26, 2.
: 1Ae14, https://doi.
org/10.
21744/lingcure.
v6nS5.
Moh.
Thohir and Didik Sukriono.
AuImplementation Authority Of The Constitutional Court In The Indonesian Constitutional Law System,Ay International Journal of Business.
Law, and Education 4, no.
2 (December 22, 2.
: 1495Ae1503, https://doi.
org/10.
56442/ijble.
Wolfgang Babeck.
AuConstitutional Duties,Ay in Writing Constitutions (Cham: Springer International Publishing, 2.
, 561Ae78, https://doi.
org/10.
1007/978-3-031-39622-9_16.
Jurnal Konstitusi Volume 21 .
2024 Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus be taken in preparation for potential material reviews.
These steps are necessary to ensure that any follow-up to the CourtAos decision is carried out appropriately and effectively.
This research was conducted to complement several previous studies on the follow-up to Constitutional Court decisions, as many of these studies did not address the ideal type of legislation needed to implement such decisions.
Some of these studies include: First, research by Yohanes Suhardin and Henny Saida Flora,20 titled AuThe Existence of the Constitutional Court Decision After the Enactment of the Job Creation Perppu Stipulation Law.
Ay In their research, they concluded that there was a form of neglect concerning Constitutional Court Decision No.
91/PUU-XVi/2020 with the issuance of the Perppu on Job Creation.
Their study primarily focuses on identifying arguments for this alleged neglect.
In contrast, the author of the present research seeks to identify the ideal form of legal instrument as a follow-up to the Constitutional CourtAos decision in judicial review cases concerning omnibus laws.
Additionally, in the study by Agus Maulidi, titled AuQuestioning the Executorial Power of the Final and Binding Decisions of the Constitutional Court,Ay Agus critically examines the final and binding nature of the Constitutional CourtAos decisions in light of the uncertainty surrounding their implementation through statutory law products.
In this article.
Agus also highlights the need to limit the Constitutional CourtAos authority in judicial reviews of legislation and stresses the importance of establishing clear deadlines in every Constitutional Court decision concerning judicial review cases.
Furthermore.
Mohammad Mahrus AliAos research, titled AuFollow-up to Constitutional Court Decisions that are Conditionally Constitutional and Contain New Norms,Ay highlights the existence of various legal instruments used to follow up on the CourtAos decisions, which in some cases, has the potential to create regulatory disharmony.
23 The key difference between that study and the current research lies in their focus.
While AliAos study examines the range of legal follow-up forms to the Constitutional CourtAos decisions, the authorAos research seeks to identify the ideal legal instrument to ensure the effective implementation of the CourtAos decision in the context of judicial review of omnibus laws.
Kaharuddin et al.
AuThe Idea of Adopting Fast Track Legislation as Afollow-Up to The Constitutional Court Decision on Material Testing,Ay Syiah Kuala Law Journal 7, no.
: 287Ae304, https://doi.
org/https:// org/10.
24815/sklj.
Yohanes Suhardin and Henny Saida Flora.
AuThe Existence of the Constitutional Court Decision After the Enactment of the Job Creation Perpu Stipulation LawAy.
USM Law Review Journal 6, no.
Yohanes Suhardin and Henny Saida Flora.
AuEksistensi Putusan Mahkamah Konstitusi Pasca Disahkannya Undang-Undang Penetapan Perpu Cipta Kerja,Ay Jurnal Usm Law Review 6, no.
: 320, https://doi.
org/10.
26623/julr.
Agus Maulidi.
AuMenyoal Kekuatan Eksekutorial Putusan Final Dan Mengikat Mahkamah Konstitusi,Ay Jurnal Konstitusi 16, no.
2 (July 11, 2.
: 339, https://doi.
org/10.
31078/jk1627.
Mahrus Ali and Rahmawaty Hilipito dan Syukri Asy.
AuTindak Lanjut Putusan Mahkamah Konstitusi Yang Bersifat Konstitusional Bersyarat Serta Memuat Norma Baru (The Implementation of Constitutional Court Verdict on Conditionally Constitutional and New Legal Nor.
Ay Jurnal Konstitusi Volume 21 .
2024 Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus Based on these studies, most only discuss the implementation of the Constitutional CourtAos decisions, with the exception of the research by Mohammad Mahrus Ali, which addressed the follow-up to the CourtAos decision by outlining various types of regulations.
However.
AliAos research focuses on decisions that are conditionally constitutional and introduce new In contrast, the present study examines the follow-up to the Constitutional CourtAos decision in the judicial review of the Omnibus Law.
Therefore, the focus of this research differs from previous studies.
The novelty of this research lies in its effort to determine the ideal type of regulation to follow up on the CourtAos decision in the context of the Omnibus Law, with the goal of maximising the decisionAos implementation.
Research Questions The description above shows the importance of standardising the legal form of the Constitutional CourtAos decision.
Thus, the problem in this study is: First, why does the follow-up to the Constitutional CourtAos decision on the judicial review of the Omnibus law need to be standardised?.
Second, what is the ideal form of legal product as a follow-up to the Constitutional CourtAos decision on the judicial review of the Omnibus law? Research Methods This research was conducted using doctrinal research methods.
24 The approaches employed include conceptual, statutory, and case analysis through a descriptive and analytical The primary legal materials used in this study include the 1945 Constitution of the Republic of Indonesia.
Law No.
12 of 2011 on the Formation of Legislation.
Law No.
13 of 2022 on the Second Amendment to Law No.
12 of 2011 on the Formation of Legislation.
Law No.
24 of 2003 on the Constitutional Court.
and Law No.
7 of 2020 on the Third Amendment to Law No.
24 of 2003 on the Constitutional Court.
Additionally, secondary and tertiary legal materials consist of scholarly books, academic journals, conference proceedings, papers, court decisions, online sources, and legal dictionaries that specifically discuss the follow-up to the CourtAos decisions.
These legal sources are then analysed using prescriptive-analytic techniques to provide insights into the regulatory framework that supports the consistency of legal instruments in following up on the CourtAos decisions in the judicial review of omnibus laws.
Pradeep M.
AuLegal Research- Descriptive Analysis on Doctrinal Methodology,Ay International Journal of Management.
Technology, and Social Sciences 4, no.
: 95Ae103, https://doi.
org/10.
Jurnal Konstitusi Volume 21 .
Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law
Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus
DISCUSSION
Standardizing the Types of Legislation as a Follow-up to the Constitutional CourtAos Decision on the Omnibus Law The choice of legal instruments as a follow-up to the CourtAos decision is intended to ensure the decisionAos implementation.
25 Conceptually, all parties are required to comply with and enforce the CourtAos decision .
rga omne.
26 This is a logical consequence of the Constitutional CourtAos existence, as it is constitutionally tasked with upholding constitutional 27 Compliance with the CourtAos decisions can be viewed as part of the broader effort to foster loyalty and adherence to the Constitution.
Conversely, defiance of the CourtAos decision can be seen as defiance of the Constitution itself.
In line with the above statement.
Jimly Asshiddiqie emphasized that all parties must properly follow up on the Constitutional CourtAos decisions, as the institution is specifically designed to uphold constitutional values.
29 Jimly further explained that in fulfilling its duties, the Constitutional Court serves five key functions: as a guardian of decisions based on a democratic system, as the highest interpreter of the Constitution, as a protector of citizensAo constitutional rights (Hak Konstitusional Warga Negara.
HKWN), and as a protector of human rights (Hak Asasi Manusia.
HAM).
30 Therefore, the implementation of the CourtAos decisions is essential as part of the broader effort to build a democratic constitutional system that prioritizes the protection of human rights.
These facts demonstrate that, in practice, not all Constitutional Court decisions have been properly followed up by the parties addressed in the rulings.
In some cases, legal instruments have been enacted that fail to remove provisions from one or more articles Luthfi Widagdo Eddyono.
AuThe Constitutional Court and Consolidation of Democracy in Indonesia,Ay Jurnal Konstitusi 15, no.
1 (March 29, 2.
: 1, https://doi.
org/10.
31078/jk1511.
Saldi Isra and Pan Mohamad Faiz.
AuThe Indonesian Constitutional Court: An Overview,Ay in Courts and Diversity (Brill | Nijhoff, 2.
, 55Ae94, https://doi.
org/10.
1163/9789004691698_004.
Thomas Horsley.
AuConstitutional Functions and Institutional Responsibility: A Functional Analysis of the UK Constitution,Ay Legal Studies 42, no.
1 (March 29, 2.
: 99Ae119, https://doi.
org/10.
1017/lst.
Putra Perdana Ahmad Saifulloh.
AuPenafsiran Pembentuk Undang-Undang Membentuk Kebijakan Hukum Terbuka Presidential Threshold Dalam Undang-Undang Pemilihan Umum Yang Bersumber Dari Putusan Mahkamah Konstitusi,Ay Jurnal Rechts Vinding: Media Pembinaan Hukum Nasional 11, no.
: 153,
https://doi.
org/10.
33331/rechtsvinding.
Agung Ali Fahmi.
Muwaffiq Jufri, and Ansori.
AuThe Implementation of Islamic Value Absorption in Regional Regulations on Districts at Madura,Ay Al-Ihkam: Jurnal Hukum Dan Pranata Sosial 15, no.
: 157Ae58, https://doi.
org/http://doi.
org/10.
19105/al-ihkam.
Nurus Zaman.
AuConstitution in Legal Political Perspective,Ay Trunojoyo Law Review 4, no.
1 (August 8, 2.
45Ae68, https://doi.
org/10.
21107/tlr.
Adelia Kartika et al.
AuComparative Study of the Constitutions of Indonesia and China Regarding the Existence of Atheists,Ay Journal of Indonesian Constitutional Law 1, no.
: 40Ae47, https://doi.
https://ejournal.
com/index.
php/jicl/article/view/19/4.
Jurnal Konstitusi Volume 21 .
2024 Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus previously declared unconstitutional or conditionally unconstitutional.
32 These legal instruments include government and institutional regulations, and in some instances, even circular letters.
The diagram below illustrates the various forms of such legal instruments.
Diagram 1.
Various Forms of Follow-up Legal Products to the Constitutional CourtAos Decisions in the Judicial Review Follow-up of Constitutional Court Decision Government regulation in lieu of Not-Implementative.
Supreme Court Regulation.
Revision and New Law Making.
Circular Letter.
Presidential Regulation.
Ministerial Regulations.
Government Regulations.
Revision and New Law Making Government Regulations Ministerial Regulations Presidential Regulation Circular Letter Supreme Court Regulation Not-Implementative Government regulation in lieu of law Source: Processed by the author from various sources The emergence of various forms of legislation in implementing the Constitutional CourtAos decisions has created opportunities for incomplete compliance, as some rulings are followed up without amending articles that have previously been declared invalid or in need of revision.
The issuance of several legal instruments, such as internal regulations of state institutions, as an implementation of the CourtAos decisions, may mislead the public into believing that these regulations reflect full compliance by state institutions.
33 However, the legislators addressed by the CourtAos decision should take concrete steps to ensure its proper implementation.
One example of this phenomenon is the follow-up to the Constitutional CourtAos decision through the issuance of regulations by state institutions.
This can be observed in Constitutional Court Decision No.
34/PUU-XI/2013, which declared that Article 268 Abdul Kadir Jaelani.
Gusti Ayu Ketut Rachmi Handayani, and Lego Karjoko.
AuExecutability of the Constitutional Court Decision Regarding Grace Period in the Formulation of Legislation,Ay International Journal of Advanced Science and Technology 28, no.
: 816Ae23.
Mahrus Ali and Rahmawaty Hilipito dan Syukri Asy.
AuTindak Lanjut Putusan Mahkamah Konstitusi Yang Bersifat Konstitusional Bersyarat Serta Memuat Norma Baru (The Implementation of Constitutional Court Verdict on Conditionally Constitutional and New Legal Nor.
,Ay 637.
Jurnal Konstitusi Volume 21 .
2024 Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus paragraph .
of the Criminal Procedure Code, limiting judicial reviews to one, is contrary to the 1945 Constitution and therefore has no binding legal force.
In response, the Supreme Court issued Supreme Court Circular Letter (SEMA) No.
7 of 2014 on the Submission of Applications for Judicial Review in Criminal Cases, which contradicts the CourtAos decision by continuing to limit judicial reviews to one instance.
The issuance of the circular letter mentioned above does not lead to the full implementation of the CourtAos decision.
35 Instead, it only partially implements the Constitutional CourtAos ruling, creating the appearance that the decision has been addressed through a circular letter, while in reality, it disregards both the order and substance of the decision.
36 Regarding these two issues, the CourtAos decision has yet to be followed up with the necessary amendments to the articles previously declared invalid or non-binding.
Moreover, relying on circular letters to follow up on such decisions diminishes the authority of the CourtAos ruling, as circular letters are not part of the hierarchy of laws and regulations and do not contain norms, authority, or binding stipulations.
The issuance of the circular letter mentioned above does not effectively implement the CourtAos decision.
Instead, it only partially addresses the ruling, creating the appearance that the decision has been followed up, despite the fact that the circular letter disregards both the order and substance of the decision.
In these two issues, there has been no follow-up in the form of improvements or amendments to the articles previously declared invalid and/or non-binding.
Moreover, relying on circular letters to implement the CourtAos decision undermines its authority, as circular letters are not part of the hierarchy or types of laws and regulations, given that they do not contain norms, authority, or binding stipulations.
As a result, the form of follow-up to the CourtAos decision in this instance is inconsistent with the standing of the Constitutional CourtAos rulings and fails to ensure harmonisation within the legal framework.
The potential for inadequate implementation of the Constitutional CourtAos decision in judicial review cases necessitates a concrete solution regarding the legal instruments used to implement the verdict.
In particular, the variations in the Constitutional CourtAos rulings Agung Barok Pratama.
Aminah, and Mohammad Jamin.
AuAnalisis Yuridis Pengaturan Ideal Peninjauan Kembali Perkara Pidana Pasca Putusan Mahkamah Konstitusi Nomor 34/PUU-XI/2013,Ay Jurnal Hukum Dan Pembangunan Ekonomi 5, no.
: 29Ae39, https://doi.
org/10.
20961/hpe.
Hari Purwadi et al.
AuResolving the Judiciary Tensions between the Constitutional Court and the Supreme Court of Indonesia,Ay Journal of Indonesian Legal Studies 9, no.
1 (May 9, 2.
: 317Ae52, https://doi.
org/10.
15294/jils.
I Ketut Sukawati Lanang Putra Perbawa.
AuLegal Policy in the Decision of the Constitutional Court and the Formation of Law,Ay Journal of Law and Sustainable Development 11, no.
12 (December 14, 2.
: e2179, https://doi.
org/10.
55908/sdgs.
Mahrus Ali and Rahmawaty Hilipito dan Syukri Asy.
AuTindak Lanjut Putusan Mahkamah Konstitusi Yang Bersifat Konstitusional Bersyarat Serta Memuat Norma Baru (The Implementation of Constitutional Court Verdict on Conditionally Constitutional and New Legal Nor.
,Ay 637.
Jurnal Konstitusi Volume 21 .
2024 Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus have evolved alongside the development of decision models introduced by the Court, including conditionally constitutional, conditionally unconstitutional, limited constitutional, and decisions that formulate new norms.
In this context, standardisation becomes increasingly urgent due to the legislative model associated with the enactment of the Job Creation Law.
This standardisation is crucial because omnibus laws encompass multiple fields of law consolidated into a single 39 The implicationAiif such a law is declared conditionally unconstitutional by the Constitutional CourtAiwould be significant, as it could trigger public demands for the swift formation of similar omnibus law models.
40 Additionally, the potential for numerous lawsuits arising from the unification of these laws must be anticipated by standardising the follow-up to the Constitutional CourtAos decisions, ensuring that the process does not create further controversy or lead to potential challenges of the follow-up regulations in the Court.
The Ideal Type of Legislation as a Follow-up to the Constitutional Court Decision on the Omnibus Law Judicial Review Before determining the most suitable type of legal instrument to follow up on the CourtAos decision, it is crucial to first examine the potential and obstacles associated with each legal instrument in implementing the CourtAos ruling.
A detailed analysis is essential as part of a scientific effort to ensure that the chosen legal instrument has undergone rigorous study and consideration.
This approach will help ensure that the instrument can be effectively implemented, thereby maximising the enforcement of the CourtAos decisions, particularly in the context of judicial reviews concerning omnibus laws.
This explanation aims to determine the binding force of a legal instrument that will be chosen as the ideal means to implement the CourtAos decision.
Beginning with legal instruments in the form of laws, this option is often considered the most suitable follow-up to the CourtAos decision.
There are several reasons for this.
First, in simple terms, when a law is subject to judicial review, a Court decision that mandates the revision of an article or part of an article should logically be followed by amending the relevant provisions of the law under review.
Since the issue typically lies in the content of the article being tested.
Nurrahman Aji Utomo.
AuThe Dynamics of the Relation Between Judicial Review and the Making of Laws,Ay Jurnal Konstitusi 12, no.
: 826Ae48, https://doi.
org/10.
31078/jk1248.
Febriansyah Ramadhan and Ilham Dwi Rafiqi.
AuStudy of Constitutional Court Decisions Cancelling All Norms in The Law,Ay Legality : Jurnal Ilmiah Hukum 29, no.
2 (July 28, 2.
: 286Ae308, https://doi.
org/10.
Nila Amania.
AuProblematika Undang-Undang Cipta Kerja Sektor Lingkungan Hidup,Ay Syariati : Jurnal Studi Al-QurAoan Dan Hukum 6, no.
: 209Ae20, https://doi.
org/10.
32699/syariati.
Dian Ayu Widya Ningrum.
Al Khanif Al Khanif, and Antikowati Antikowati.
AuFormat Ideal Tindak Lanjut Putusan Mahkamah Konstitusi Untuk Mengefektifkan Asas Erga Omnes,Ay Jurnal Konstitusi 19, no.
314, https://doi.
org/10.
31078/jk1924.
Jurnal Konstitusi Volume 21 .
2024 Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus the most appropriate course of action is to amend the article or section that the Court has identified as problematic, particularly in relation to upholding constitutional principles and protecting citizensAo rights.
It is also important to note that the position of laws as legal instruments directly under the Constitution is strategic and can be effectively used as a follow-up to the CourtAos decision in cases of judicial review.
From a hierarchical perspective within IndonesiaAos system of laws and regulations, both in theory and practice, laws hold the highest position in terms of explaining and elaborating on the materials and fundamental principles contained in the Constitution.
43 According to Jimly Asshiddiqie, laws should maintain the highest hierarchy compared to other legal instruments, such as regulations.
In his explanation.
Jimly provides examples and comparisons of the position of laws in various countries, including the Netherlands and the United States.
In the Netherlands, the legal instrument wet holds the highest position under the Constitution .
Similarly, in the United States, legislative acts are directly subordinate to the Constitution.
Article 7 paragraph .
of Law No.
12 of 2011 on the Establishment of Legislation places MPR Decrees as legal instruments directly under the Constitution.
However, if these decrees contain regelling norms, they do not possess constitutional authority.
The existence of such legal instruments is intended to accommodate the continued validity of several MPR Decrees (TAP MPR) enacted before the amendment of the 1945 Constitution of the Republic of Indonesia, which are still considered necessary and valid.
Jimly Asshiddiqie further explained that some of these TAP MPRs remain valid because their subject matter has not yet been regulated by law, while their provisions are essential for addressing public interests.
The re-recognition of MPR Decrees in this law does not affect the MPRAos authority, as it is no longer empowered to issue such decrees following the constitutional amendments.
45 Jimly Asshiddiqie firmly argues that the existence of MPR Decrees in the current constitutional framework lacks a constitutional basis if they contain regulatory norms.
Furthermore, the revocation of the MPRAos authority to issue TAP MPR after the amendment of the 1945 Constitution reinforces the position of laws as the highest legal instruments for interpreting Malik Eman and Darwati Darwati.
AuFormal Testing of Creational Law in Constitutional Court Decisions,Ay in Proceedings of the 2nd Multidisciplinary International Conference.
MIC 2022, 12 November 2022.
Semarang.
Central Java.
Indonesia (EAI, 2.
, 324Ae35, https://doi.
org/10.
4108/eai.
12-11-2022.
Bayu Dwi Anggono and Fahmi Ramadhan Firdaus.
AuHandling of The Covid-19 Pandemic by The Government in View from The Legal Products Formed,Ay Trunojoyo Law Review 5, no.
1 (March 20, 2.
: 18Ae40, https://doi.
org/10.
21107/tlr.
Jimly Asshiddiqie.
AuBuilding A Constitutional Aware Culture to Create A Democratic Law State,Ay PETITA:
JURNAL KAJIAN ILMU HUKUM DAN SYARIAH 8, no.
1 (April 1, 2.
, https://doi.
org/10.
22373/petita.
Ahmad Gelora Mahardika.
AuPolitik HukumTAP MPR Melalui Amandemen Undang-Undang Dasar 1945,Ay Legislasi Indonesia 16, no.
: 345.
Jurnal Konstitusi Volume 21 .
2024 Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus the foundational rules mandated by the Constitution in the form of regulations.
In this context, choosing to implement the CourtAos decision through laws is the appropriate course of action.
Ideally, the position of laws as a follow-up to the Constitutional CourtAos decision is based on their hierarchical structure within the Indonesian legislative system.
Due to their position, laws serve as a reference for various legal instruments subordinate to the Constitution.
This pivotal role is not shared by other legal instruments with a lower hierarchical standing.
Consequently, the harmonisation of regulations can be achieved, as the norms established in the law will provide the legal foundation for the substantive material in several legal instruments under the law.
Furthermore, there is a similarity of functions between laws and the Constitutional CourtAiboth interpret and incorporate the Constitution.
As Jimly Asshiddiqie explained, laws serve as the highest legal instruments for translating the rules contained within the Constitution.
This aligns with the role of the Constitutional Court, which is also tasked with upholding constitutional values.
48 One of the CourtAos key functions is to review the constitutionality of laws against the 1945 Constitution of the Republic of Indonesia.
In this regard, the CourtAos decisions in judicial review cases reinforce the constitutional values or principles embedded within laws, thereby elevating their standing in accordance with constitutional standards.
It is therefore accurate to assert that such decisions have significant implications for preserving constitutional integrity and maintaining standards within the broader regulatory framework of legislation.
However, the implementation of the Constitutional CourtAos decisions through legislation faces certain obstacles, particularly concerning the execution timeline.
The process of amending and/or drafting a law as a follow-up to the Constitutional CourtAos decision is time-consuming, as it must undergo a series of processes and discussions between the legislative and executive branches.
If a law is the chosen instrument, it may create a legal vacuum during the period following the Constitutional CourtAos decision.
Although the Second Amendment to the Law on the Formation of Laws and Regulations has shortened the time frame for drafting laws as a follow-up to the CourtAos decisions, the process still requires a significant amount of time.
In summary, the binding force and obstacles related to implementing the CourtAos decisions in judicial review cases through legislation, as described above, can be illustrated in the table below:
Jimly Asshiddiqqie.
Pengantar Ilmu Hukum Tata Negara (Jakarta: Rajawali Pers, 2.
, 175Ae76.
Jimly Asshiddiqie.
AuKonstitusionalisme Dalam Pemikiran Soepomo,Ay in Soepomo Pergulatan Tafsir Negara Integralistik Biografi Intelektual.
Pemikiran Hukum Adat.
Dan Konstitusionalisme, 1st ed.
(Yogyakarta: Thafa Media, 2.
, 77Ae78.
Ainun Najib et al.
AuRegulation on Freedom of Expression on Social Media in Indonesia and Malaysia,Ay Journal of Indonesian Constitutional Law 1, no.
: 46Ae60, https://doi.
org/https://ejournal.
com/index.
php/jicl/article.
Jimly Asshiddiqqie.
Pengantar Ilmu Hukum Tata Negara, 179.
Jurnal Konstitusi Volume 21 .
2024 Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus Table 1.
Binding Force and Potential Obstacles to Follow-up the Constitutional CourtAos Decisions Through Laws No.
Supporters Obstacles The decision to review a law is to review the law, so the The long duration follow-up should be regulated in an equivalent regulation.
o f d r a f t i n g a n d In other words, the Constitutional CourtAos decision to review amending laws after a law should be followed up with amendments and/or the the Constitutional creation of a new law.
CourtAos Decision may The position of the Law, which hierarchically has the highest create a legal vacuum.
position under the Constitution in regulations that regulate, has a strategic role in ensuring the harmonisation of legislative arrangements after the Constitutional Court Decision.
The relationship between the functions of the legal products of the Law and the institutional tasks of the Constitutional Court, which both translate the intent of the constitutional rules, is believed to further strengthen the noble messages of the constitution in the system of laws and regulations in Indonesia after the Constitutional Court decides on the case of judicial review of the law.
Source: Compiled by the author from several references The following legal instrument has the potential to be the ideal choice for implementing the CourtAos decision: a Government Regulation in Lieu of Law (Perpp.
The Perppu, when used as a follow-up to the Constitutional CourtAos decision, offers several advantages.
First, in the hierarchical structure of legislation, a Perppu holds the same status as a law, although its issuance must be justified by an element of emergency.
50 After the CourtAos decision is issued, this hierarchical position plays a significant role in legislative harmonisation efforts.
If the follow-up to the decision is a Perppu, it can serve as a reference for the issuance of implementing legal instruments whose hierarchical position is below that of the law or Perppu.
The issuance of a Perppu as a follow-up to the CourtAos decision in the field of judicial review can also address the legal vacuum that may arise after the decision is issued.
51 Since a Perppu can be enacted relatively quickly without the need for lengthy discussions and procedures between the legislative and executive branches, it expedites the implementation of the CourtAos decision, avoiding the prolonged process associated with amending or drafting This swift action helps prevent any legal uncertainty following the CourtAos decision Saru Arifin.
AuThe Quality of IndonesiaAos COVID-19 Legislation,Ay The Theory and Practice of Legislation 12, 3 (September 11, 2.
: 317Ae43, https://doi.
org/10.
1080/20508840.
Encik Muhammad Fauzan.
Hukum Tata Negara Indonesia (Malang: Setara Press, 2.
, 199.
Jurnal Konstitusi Volume 21 .
2024 Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus and provides clarity for parties seeking legal certainty on the measures to be taken after the ruling is issued.
The use of a Perppu as a follow-up to the CourtAos decision is not without challenges.
even if this legal instrument is chosen, it may introduce new problems within the legislative system.
These challenges include the question of Aucompelling urgencyAy after the CourtAos decision is issued.
Not all decisions will create the urgency required for the issuance of a Perppu.
While the issuance of a Perppu is the PresidentAos prerogative,52 to prevent its misuse as a tool of power, the Constitutional Court, through Decision No.
PUU-VII/2009, established three conditions that define Aucompelling urgency,Ay which is the primary requirement for the issuance of a Perppu.
These three conditions are:53 .
There is an urgent need to resolve legal issues swiftly under the law.
The required law does not yet exist, resulting in a legal vacuum, or the existing law is inadequate.
The normal legislative process cannot overcome the legal vacuum because it would take too long, while the urgent situation requires immediate resolution.
Second, the issuance of a Perppu as a follow-up to the Constitutional CourtAos decision in a judicial review case provides only a temporary solution, as the validity of a Perppu is limited to situations of emergency, which are not likely to persist for long.
Once the state of emergency is deemed to have ended, the Perppu must be submitted to the legislative branch for approval.
If approved, the Perppu becomes a law.
if rejected, its validity ceases.
This process may hinder the full implementation of the Constitutional CourtAos decision, as multiple stages must still be navigated, and there is always the potential for rejection by the legislature.
The opportunities and challenges associated with using a Perppu as a follow-up to the Constitutional CourtAos decision can be outlined in the table below:
Table 2.
Opportunities and Obstacles of Perppu as a Follow-up to the Constitutional CourtAos Decision No.
Opportunities Obstacles Perppu has a hierarchical structure with Not all of the Constitutional CourtAos laws that can harmonise legislation decisions in law review cases are like under the law after reading the emergencies, which means that not all of Constitutional Court Decision.
the Constitutional CourtAos decisions can be followed up with a Perppu.
Mas Pungky Hendra Wijaya and Mohammad Zulfikar Ali.
AuLegislation Impediments in Reorganising Government Bodies in Indonesia,Ay BESTUUR 9, no.
1 (August 12, 2.
: 1, https://doi.
org/10.
Susi Dwi Harijanti.
AuPerppu Sebagai Extra Ordinary Rules: Makna Dan Limitasi,Ay Paradigma Hukum Pembangunan 2, no.
: 77Ae91.
Akhmad Safik.
AuLaw-Making Process in Indonesia An Analysis On the National Legislation Program (Prolegna.
,Ay Jurnal Magister Ilmu Hukum 1, no.
1 (July 17, 2.
: 20, https://doi.
org/10.
36722/jmih.
Jurnal Konstitusi Volume 21 .
2024 Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus The process of issuing Perppu, which is The validity duration is short and requires relatively faster than the Law, will avoid further stages to be approved as a law.
This the potential legal vacuum after reading process will hinder the implementation of the Constitutional Court Decision.
This the Constitutional Court Decision.
Not to will certainly provide legal certainty for mention, the potential for rejection from the parties interested in issuing regulations executive branch is still open.
after the Constitutional Court Decision.
Source: Compiled by the author based on several references The next option for regulation as a follow-up to the Constitutional CourtAos decision involves legislation subordinate to laws, which, in several previous decisions, has often been implemented through various forms of regulation.
These include government regulations, presidential regulations, ministerial regulations, and agency regulations, such as the Election Commission Regulations (KPU).
Supreme Court Regulations (Perm.
, and circular letters, such as the Circular Letter of the Director General of Industrial Relations and Labour Social Security No.
31/PHIJSK/I/2012 on the Implementation of Court Decision Number 27/ PUU-IX/2011, dated 20 January 2012.
The advantage of this form of regulation lies in its relatively short issuance period, allowing it to quickly fill the legal vacuum following the Constitutional CourtAos decision.
However, these regulations do not alter the substance of the problematic articles that have infringed upon citizensAo constitutional rights.
Additionally, the binding force of such regulations may create disharmony within the legislative system, particularly with circular letters, which do not contain enforceable norms, as these legal instruments are not part of the hierarchical structure of IndonesiaAos legislative system.
Based on the above arguments, a law is the most appropriate type of legal instrument to follow up on the Constitutional CourtAos decision concerning the Omnibus Law.
This legal instrument is preferable because the articles in the Omnibus Law that were deemed problematic by the Constitutional Court should be amended through the drafting or revision of laws.
Moreover, in several decisions, the Constitutional Court has explicitly directed the legislature to amend and improve articles declared unconstitutional.
Additionally, the binding force of laws positions this legal instrument as ideal for implementing the Constitutional CourtAos decision in judicial review cases involving the Omnibus Law.
The concept of standardising the form of legal instruments in response to Constitutional Court decisions in judicial review cases concerning the Omnibus Law applies specifically to decisions that establish new norms or are deemed conditionally unconstitutional.
If the Syukri AsyAoari.
Meyrinda Rahmawaty Hilipito, and Mohammad Mahrus Ali.
AuModel Dan Implementasi Putusan Mahkamah Konstitusi Dalam Pengujian Undang-Undang (Studi Putusan Tahun 2003-2.
,Ay Jurnal Konstitusi 10, no.
: 675, https://doi.
org/10.
31078/jk1046.
Mahrus Ali and Rahmawaty Hilipito dan Syukri Asy.
AuTindak Lanjut Putusan Mahkamah Konstitusi Yang Bersifat Konstitusional Bersyarat Serta Memuat Norma Baru (The Implementation of Constitutional Court Verdict on Conditionally Constitutional and New Legal Nor.
,Ay 163.
Jurnal Konstitusi Volume 21 .
2024 Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus decision establishes new norms, it should compel lawmakers to amend the substance of the relevant articles or paragraphs in line with the new norms contained in the decision.
In cases where the decision is conditionally unconstitutional, the standardisation of legal instruments through amendments to the law should also be implemented, as such rulings typically require legislators to make changes in order for the conditionally unconstitutional provisions to become constitutional.
Although a law is considered the ideal legal instrument to follow up on the Constitutional CourtAos decision in judicial review cases with an omnibus character, this choice raises several issues.
First, there is currently no legal basis obligating the parties addressed by the decision to follow up through the enactment of a law.
58 Second, the process of drafting and enacting a law as a follow-up to the Constitutional CourtAos decision in an omnibus judicial review case is time-consuming and involves multiple stages.
In this context, lawmaking institutions must navigate formal procedures that extend the legislative process, especially if the proposed amendments are not included in the national legislative program (Prolegna.
As a solution, the regulatory framework pursued by the state must provide clear guidelines for the formulation of follow-up actions to the Constitutional CourtAos decisions in judicial review cases concerning omnibus laws.
60 These decisions must be followed up with amendments and/or the creation of new regulations, as required by the rulings.
While the requirement for such follow-up through legislative amendments was implicitly provided in Article 59 paragraph .
of Law Number 8/2011 concerning Amendments to Law Number 24/2003 on the Constitutional Court (MK La.
, this provision was declared to no longer have binding legal force following the Constitutional CourtAos Decision No.
PUU-IX/2011 on Tuesday.
October 18, 2011.
As a result, the Constitutional Court Law no longer regulates the follow-up procedure after a decision is issued.
The only legal reference for following up on the Constitutional CourtAos decision through legislation is Article 10 paragraph .
letter d of Law No.
12/2011 on the Formation of Legislation.
This provision includes an option for regulating material that must be Mark Cammack.
AuLegal Certainty in the Indonesian Constitutional Court: A Critique and Friendly Suggestion,Ay Constitutional Democracy in Indonesia, 2023, 275Ae98, https://doi.
org/10.
oso/9780192870681.
Wahjoe Poernomo Soeprapto.
AuMeaningful Participation Through Online Channels in Legislation Making in Indonesia via Dpr.
Go.
Id Page,Ay Trunojoyo Law Review 6, no.
: 190, https://doi.
org/https://doi.
org/10.
21107/tlr.
Vera Wheni S.
Soemarwi.
Yeremia Wijaya, and Arthuro Richie Gunawan.
AuThe Absence of Constitutional CourtAos Decision Follow Up: Is It A Loss?,Ay Jurnal Konstitusi 19, no.
3 (August 30, 2.
: 720Ae40, https:// org/10.
31078/jk19310.
Eugenia Brandao Da Silva and Lin Asyiqoh.
AuThe Idea of Legal Pluralism in Dispute Resolution of Village Head Election in Madura,Ay Journal of Indonesian Constitutional Law 1, no.
: 61Ae83, https://doi.
org/ejournal.
NiAomatul Huda.
AuProblematika Pengaturan Tindak Lanjut Putusan Mahkamah Konstitusi Dalam Perkara Pidana Oleh Mahkamah Agung,Ay Jurnal Hukum Ius Quia Iustum 27, no.
: 437Ae57, https://doi.
org/10.
20885/iustum.
Jurnal Konstitusi Volume 21 .
2024 Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus addressed through law, one of which is the follow-up to a Constitutional Court decision.
Furthermore, paragraph .
states that the DPR or the President is responsible for carrying out the follow-up to the Constitutional CourtAos decision.
However, this provision does not explicitly require the parties addressed by the Constitutional CourtAos decision to follow up through the formation of a law.
The potential of this provision should be fully realised if there were an affirmation that the obligation to follow up on the Constitutional CourtAos decision through law, as stipulated in Article 59 paragraph .
of the Constitutional Court Law, remains valid.
62 Therefore, it is essential to reaffirm the obligation to follow up on such decisions through the formation of legislation to ensure the executory power of the Constitutional CourtAos decisions is properly implemented.
The next legal construction related to the duration required for amending or drafting new laws is to provide expedited procedures in the formation of laws resulting from the Constitutional CourtAos decision in the judicial review of the Omnibus Law.
63 To date, the practice of forming laws following the Constitutional CourtAos decisions has often placed the draft regulations in an open cumulative category within the National Legislation Program (Prolegna.
, with the formation process and stages still requiring considerable time.
The limited acceptability of the Constitutional CourtAos decisions in Prolegnas indicates that this approach cannot be relied upon to meet the need for accelerated lawmaking following the CourtAos rulings.
In 2021, there was an urgency to follow up on the Constitutional CourtAos decisions.
During that year, the Constitutional Court handled 121 law review cases, consisting of 71 cases registered in 2021 and 50 cases registered in the previous year.
Of these, the Court decided 99 cases, while 22 remained under examination.
The case breakdown is as follows:
14 decisions were granted, 39 decisions were refused, 34 were deemed inadmissible, 11 cases were withdrawn, and one decision ruled that the Constitutional Court had no Furthermore, out of the 14 granted decisions, only one was included in the open cumulative list of Prolegnas due to the Constitutional CourtAos decisionAinamely, the Bill to Amend Law No.
11 of 2020 concerning Job Creation.
65 Thirteen other granted decisions have yet to be included in the open cumulative list of Prolegnas.
Based on this data, the urgency for more Constitutional Court decisions to be incorporated into the Prolegnas list Yuniar Riza Hakiki and Taufiqurrahman Taufiqurrahman.
AuThe Idea of Structuring National Legislation Based on The Ratio of Decidendi & Obiter Dictum Constitutional Court Decision,Ay Jurnal Konstitusi 20, no.
: 78Ae99, https://doi.
org/10.
31078/jk2015.
Bagus Hermanto and Nyoman Mas Aryani.
AuOmnibus Legislation as a Tool of Legislative Reform by Developing Countries: Indonesia.
Turkey and Serbia Practice,Ay The Theory and Practice of Legislation 9, 3 (September 2, 2.
: 425Ae50, https://doi.
org/10.
1080/20508840.
Gusti Ayu Ketut Rachmi Handayani.
Karjoko, and Jaelani.
AuModel Pelaksanaan Putusan Mahkamah Konstitusi Yang Eksekutabilitas Dalam Pengujian Peraturan Perundang-Undangan Di Indonesia,Ay 37.
Hakiki and Taufiqurrahman.
AuThe Idea of Structuring National Legislation Based on The Ratio of Decidendi & Obiter Dictum Constitutional Court Decision,Ay 91.
Jurnal Konstitusi Volume 21 .
2024 Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus highlights that the current method of following up on the CourtAos decisions is insufficient to ensure the executability of the rulings.
The concept of accelerating the formation of laws resulting from the Constitutional CourtAos decision in judicial review cases can be achieved through the implementation of Fast Track Legislation (FTL).
67 The FTL method is commonly practiced to address urgent legal needs, though not necessarily in emergency situations.
It is not the only term used to describe the expedited process of drafting laws, as some countries also refer to this model as Aumotion urgencyAy to denote the acceleration of the legislative process.
FTL practices are prevalent in countries such as the United Kingdom (UK) and Ecuador, while the motion urgency model is commonly used in New Zealand.
In the UK, the FTL approach refers to a model of drafting laws where the requirements and stages are completed more quickly and concisely than in the usual legislative process.
Although this model is relatively fast and similar to a Perppu in terms of time, the drafting and stages of FTLs still adhere to the standard procedures for lawmaking.
Procedurally, the steps remain the however, the time allocated for each stage is shortened, with an average duration of no more than 30 days.
The implementation of FTL in the UK is subject to strict conditions and limitations, guided by predetermined standards, and is typically invoked to address urgent legal needs within the community.
These standards include:70 .
correcting errors in legislation.
responding to court decisions.
ensuring the law applies at a particular moment.
upholding the UKAos international commitments.
making budgetary changes.
addressing economic crises.
implementing counter-terrorism measures.
preserving the unity of the UK.
responding to public outcry.
Meanwhile, the practice of motion urgency in New Zealand involves the expedited formation of laws, which are processed more quickly than under the usual legislative 71 The New Zealand government has established four categories of issues that AAoan Efendi and Fradhana Putra Disantara.
AuPost Conditionally Unconstitutional of Job Creation Law:
Quo Vadis Legal Certainty?,Ay Yuridika 37, no.
2 (August 5, 2.
: 345Ae82, https://doi.
org/10.
20473/ydk.
Martitah Martitah et al.
AuTransformation of the Legislative System in Indonesia Based on the Principles of Good Legislation,Ay Journal of Indonesian Legal Studies 8, no.
2 (November 5, 2.
, https://doi.
org/10.
15294/jils.
Bayu Aryanto.
Susi Dwi Harijanti, and Mei Susanto.
AuMenggagas Model Fast-Track Legislation Dalam Sistem Pembentukan Undang-Undang Di Indonesia,Ay Jurnal Rechts Vinding: Media Pembinaan Hukum Nasional 10, 2 .
: 187, https://doi.
org/10.
33331/rechtsvinding.
Dian Kus Pratiwi.
Muhammad Addi Fauzani, and Ahmad Ilham Wibowo.
AuPotensi Pengaturan Dan Praktek Pembentukan Undang-Undang Secara Cepat Di Indonesia (Studi Terhadap Pembentukan Revisi UndangUndang Tentang Komisi Pemberantasan Tindak Pidana Korupsi Dan Undang-Undang Mahkamah Konstitus.
,Ay Jurnal Legislasi Indonesia 19, no.
: 502Ae17.
Wicipto Setiadi.
AuFast Track Legislation Sebagai Bentuk Percepatan Supremasi HukumAy (Bandung: Fakultas Hukum Universitas Pajajaran, 2.
, 39.
Christine Reh et al.
AuThe Informal Politics of Legislation,Ay Comparative Political Studies 46, no.
9 (September 5, 2.
: 1112Ae42, https://doi.
org/10.
1177/0010414011426415.
Jurnal Konstitusi Volume 21 .
2024 Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus may be addressed through the motion urgency model: .
to expedite laws addressing urgent parliamentary needs related to unexpected issues, such as correcting errors made by legislative bodies or addressing economic stability.
to manage and complete the legislative queue.
for tactical reasons, such as addressing public sentiment or political and .
matters related to the state budget.
Based on these practices, the Constitutional CourtAos order to amend a law can be considered a valid circumstance for applying expedited law formation procedures, as seen in both the FTL model in the UK and the motion urgency model in New Zealand.
This indicates that there is potential for the Constitutional CourtAos decisions to be followed up with law amendments through the FTL model within IndonesiaAos legislative system, particularly in the context of law formation as a follow-up to the Constitutional CourtAos decision in the judicial review of the Omnibus Law.
The reduction in the time required for lawmaking offered by the FTL model is significant, as it allows for a more efficient legislative process.
This is particularly relevant when amendments to specific articles or paragraphs are mandated by a court order.
Typically, the courtAos ruling does not call for an overhaul of the entire law, but rather the modification of specific articles or paragraphs as requested by the petitioners.
These amendments should be made swiftly, as the instructions and considerations are clearly outlined in the courtAos 74 The lawmaking body is primarily tasked with incorporating the amendment points as specified in the ruling.
CONCLUSIONS
This research concludes that the standardisation of types of legislation as a followup to the Constitutional CourtAos decisions in the judicial review of the Omnibus Law must be implemented immediately to avoid the proliferation of regulations that lead to the decisions being ignored by the parties addressed.
This is especially necessary when numerous regulations need to be amended based on the Constitutional CourtAos decisions.
The urgency of standardisation arises from the fact that some decisions have been followed up with various regulations, including those issued by state institutions, whose substance contradicts the Constitutional CourtAos rulings.
This research suggests that a law is the ideal Aryanto.
Harijanti, and Susanto.
AuMenggagas Model Fast-Track Legislation Dalam Sistem Pembentukan Undang-Undang Di Indonesia,Ay 179.
Agnes Fitryantica and Regy Hermawan.
AuFast-Track Legislation Mechanism as an Alternative to the Formation of Legislation in Indonesia,Ay Jurnal Ilmiah Kebijakan Hukum 16, no.
3 (November 30, 2.
423, https://doi.
org/10.
30641/kebijakan.
V16.
Nurus Zaman et al.
AuQuestioning the Constitutional Court Decision Regarding Age Limit of Presidential and Vice-Presidential Candidates,Ay PETITA: JURNAL KAJIAN ILMU HUKUM DAN SYARIAH 9, no.
611Ae29, https://doi.
org/10.
22373/petita.
Febri Sianipar and Hari Prasetiyo.
AuLegal Implications Of Positive Fictive Application After The Law Of Job Creation Law Is Declared Conditionally Unconstitutional,Ay JASSP 3, no.
1 (May 22, 2.
: 12Ae20, https:// org/10.
23960/jassp.
Jurnal Konstitusi Volume 21 .
2024 Standardisation of the Legislation as a Follow-Up to the Constitutional CourtAos Decision on Judicial Review of Omnibus Law Standardisasi Regulasi Tindak Lanjut Putusan Mahkamah Konstitusi pada Perkara Pengujian Undang-Undang Omnibus legal instrument to follow up on the Constitutional CourtAos decisions, particularly in judicial review cases concerning the Omnibus Law.
A law is the most suitable mechanism to ensure that the rulings are implemented properly and effectively.
However, following up through legislation requires a specific strategy to address the lengthy process of amending laws in response to the Constitutional CourtAos decisions.
The proposed strategy is to introduce a provision mandating the use of the fast-track legislation model.
This approach aims to expedite the lawmaking process and ensure that the Constitutional CourtAos decisions are implemented promptly and in accordance with the rulings.
REFERENCES