Vol. 9 | No. 1 | March 2025 | Pages: 1-18
p-ISSN: 2549-0664; e-ISSN: 2549-0753
Published by Sekolah Tinggi Hukum Bandung

Judicial Review on Health Emergency Law: The Challenge to
Judicial Independence of Indonesian Constitutional Court
Radian Salman1, Rosa Ristawati2, Bernard Nicholas Singarimbun3
Faculty of Law, Airlangga University, Surabaya, East Java, Indonesia
2
Faculty of Law, Airlangga University, Surabaya, East Java, Indonesia
3
Faculty of Law, University of Hamburg, Germany

1

* Corresponding author: radian.salman@fh.unair.ac.id
Article history:
Received: 28 August 2024

|Accepted: 12 March 2025

|Published: 31 March 2025

Recommended Citation:
Radian Salman, Rosa Ristawati, and Bernard Nicholas Singarimbun, “Judicial Review on Health Emergency Law:
The Challenge to Judicial Independence of Indonesian Constitutional Court,” Jurnal Wawasan Yuridika 9, No. 1
(2025): 1-18, DOI: 10.25072/jwy.v9i1.4314.

Abstract

Keywords:
Constitutional Court;
Emergency Law;
Independence; Judicial
Review.

Emergency laws are often enacted by the President to address urgent situations and safeguard
public welfare. Still, it risks fundamental rights and the rule of law without proper scrutiny.
This research is addressed to analyse the tendency of judicial independence of the Constitutional
Court in conducting a review over a Government Regulation in Lieu of Law (Perppu), especially
based on Court Decision Number 138/PUU-VII/2009. This article is important because it
addresses the critical issue of judicial independence in the context of emergency laws, which
can have significant implications for fundamental rights and the rule of law. This research is
a doctrinal research with focus on analyzing constitutional and statutory provisions, legal
principles, case law and also comparative approach. Subsequently, data collection techniques
were employed utilizing a document study, then analyze qualitatively. The findings of this
research is that the enactment of emergency law turns into a double challenge for judges to
decide the case, particularly when the judges are appointed by the President. Moreover, judicial
review on emergency law shows the more tension between executive power and judicial oversight
compared to judicial review of legislation. This helps deepen the understanding of how courts
balance constitutional principles during emergencies and provides valuable insights for other
jurisdictions facing similar challenges.

A. INTRODUCTION
During the Coronavirus Disease
(COVID-19) pandemic, there has
been a noticeable trend of increasing
power within the executive branch.
Traditionally, crises or emergencies are
seen as opportunities for the executive to
extend its power and influence beyond
the usual limits of the legislative and

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judicial branches. Over the years during
a pandemic, many countries have
witnessed executive-leading pandemic
responses, with legislatures stepping
back by granting considerable authority
to executive figures. This authority has
allowed them to implement drastic
and stringent measures to curb the
virus’s spread, including imposing
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travel restrictions, closing borders of
the country, closing schools and public
places, and enforcing strict lockdowns
and curfews. Similarly, courts worldwide
have shown more restraint and provided
greater deference than usual in their
evaluations of these COVID-19 measures.
During the COVID-19 pandemic, the
President of Republic of Indonesia
imposed Presidential Decree No. 11
Year 2020, declaring a health emergency,
imposing large-scale social restrictions
and urging local and regional leaders to
follow current regulations and not issue
their own regulations. The President also
ordered the National Police to enforce the
restrictions legally, but he did not explain
what measures security personnel could
take.
In Indonesia, the emergency law has
a constitutional basis according to Article
12 regarding the power of the President
in declaring State of Emergency.
Article 22 of Indonesian Constitution
stipulates that in time of emergency,
the President has the right to make
emergency law which the constitution
states as the government regulation in
lieu of laws. Such emergency law has
a limited period, which according to
Section 2 of the article, the emergency
law must obtain the approval from the
House of the Representatives during
the next session. However, if it is not
approved, the law has to be revoked.

1

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In Indonesia, there are several cases
where the President makes emergency
law. Ever since the establishment of the
Constitutional Court of Indonesia, there
are at least 8 Government Regulation
in Lieu of Law (Perppu) that have been
judicially reviewed by the Constitutional
Court.
To this extent, the issue that has
been addressed is to assess the judicial
independence of the constitutional court
while reviewing this emergency law.
Certain conditions may warrant the
establishment of emergency laws, one
of which is the exigencies compel as
outlined in the Indonesian Constitution.
In this context, the President has the
clear authority to determine exigencies.
Thus, it is reasonable to assert that the
President would be aware when the state
is facing such exigent circumstances.
Several scholars support the view that
the decision rests on the President’s
subjective judgment.1
According to the court decision,
there are three indicators for the
exigencies compel that may have the
consequence that the President is able to
make the emergency law. First, there is
an urgent need to find the legal solution.
Second, there is a legal vacuum. And
last, there is no legal procedure and
the situation needs legal certainty. This
article focuses on the independence of
the Constitutional Court during health

Jimly Ashidiqqie, Hukum Tata Negara Darurat (Jakarta: Rajawali Pers, 2008), p. 48.

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emergency situation of COVID-19.
During the emergency, Indonesia has
two emergency law, there are Perppu
No. 1/2020 on State Finance Policy and
the Stability of Financial System for the
Pandemic Measures of Corona Virus
Diseases 2019 (COVID-19) and Perppu
No. 2/2020 on The Third Amendment of
Law No. 1/2015 on Stipulation of Perppu
No. 1/2014 on the Governor, Regent,
and City Mayor Election. The main
issue in this article is concerning judicial
independence when reviewing the
emergency law in particular the health
emergency situation, with additional
analysis in comparative perspective with
the US and the Philippines. It will look at
how the constitutional judges decide the
emergency law which is one of the legal
products of the executive.2
Given that the COVID-19 pandemic
poses a global threat and presents a
borderless challenge, several earlier
studies have examined how the Courts
respond to emergency legislation. Since
the Indonesian Constitutional Court
was established in August 2003, the
COVID-19 pandemic in 2020 provided
a unique challenge for the Court as
it navigated the judicial review of
emergency laws. This situation has led

2

3

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to an increased interest in studying how
judges respond to executive powers
during times of crisis. Previous research
conducted by Turkut in 2022, titled
“Emergency Powers, Constitutional
(Self-) Restraint and Judicial Politics: The
Turkish Constitutional Court During the
COVID-19 Pandemic,” explains that, in
the case of Turkey, the role of the Turkish
judiciary including the TCC has remained
unchanged in that they re-emerged
as a tool of the state.3 Another study
conducted by Hickman and Tomlinson
in 2023, titled “Judicial Review during
the COVID-19 Pandemic,” studied on
how the executive branch exercise the
power in time of crisis shows that the
pandemic imposed dual, competing
pressures on the judicial review system.
On one side, there was a demand
for special deference to government
actions, whereas, on the other, there
was a call for increased judicial scrutiny.
Predominantly, the case law during this
period reflects the former, demonstrating
a tendency towards deference.4 In the
context of Indonesia, Rosa et al. in 2023,
titled “Doctrine of Executive Immunity
in Times of COVID-19: Experience from
Indonesia”, identifies that measures
taken have covered various aspects

ODIHR, Fair Trial Rights and Public Health Emergencies (Warsaw: OSCE Office for Democratic
Institutions and Human Rights (ODIHR), 2021), p. 6.
Emre Turkut, “Emergency Powers, Constitutional (Self-)Restraint and Judicial Politics: the Turkish
Constitutional Court During the COVID-19 Pandemic,” Jus Cogens 4, No. 3 (4 Oktober 2022): 263-284,
https://doi.org/10.1007/s42439-022-00064-7, p. 281.
Tom Hickman K C and Joe Tomlinson, “Judicial Review during the Covid-19 Pandemic,” Edinburgh
Law Review 27, No. 3 (2023), p. 283.

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ranging from social, economic, monetary
and fiscal policy, tax, and any kinds of
social restrictions in the health policies
including vaccines.5 The position of this
study is that since the establishment of
the institution of judicial review over
legislation, the Constitutional Court has
new experience to review emergency
laws within the context of similar global
situation, specifically in response to the
COVID-19 pandemic. The emergency
laws previously reviewed by the
Court were not related to public safety
in a general sense, such as review
over emergency law concerning anticorruption (decision No. 138/PUUVII/2009). Thus, this context presents
a dilemma for the Court in issuing
decisions due to its implications for the
safety of life of individual.
Although earlier studies have
explored judicial behaviour during crises
or emergencies, this research stands out
due to its concentrated focus on the
judicial review of emergency laws in
Indonesia. In times of emergency, there
is a tendency for executive authority
to expand, yet it is crucial that human
rights must remain protected. As the
experience of emergency laws during
the COVID-19 pandemic represents
a worldwide concern, this research
includes a comparative analysis aimed at

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4

providing a comprehensive theoretical
examination of judicial independence
during a health crisis. The objective of
this study is to explore the Constitutional
Court’s tendency to uphold judicial
independence
when
reviewing
emergency legislation in Indonesia
moving forward.

B. RESEARCH METHODS
This study is classified as normative
research. It utilizes data, including
primary sources of legal materials and
secondary data. The methods employed
are statute approach, conceptual
approach,
case
approach,
and
6
comparative approach . The data used
in this study were obtained through the
literature study, encompassing various
studies and regulations relevant to the
research issues. The collected data will
be analyzed using qualitative analysis
methods.

C. RESULTS AND DISCUSSIONS
1. Health Emergency Law in Indonesia
Indonesia has laws that address
public health emergencies and crises,
and these laws are intended to provide
the necessary legal frameworks and
responses. Act No. 6 of 2018 on Health

Rosa Ristawati, Radian Salman, and John Roberto Sampe, “Doctrine of Executive Immunity in Times
of COVID-19: Experience from Indonesia,” in International Handbook of Disaster Research (Singapore:
Springer Nature Singapore, 2023), https://doi.org/10.1007/978-981-19-8388-7_123, p.1821.
Peter Mahmud Mz, Penelitian Hukum (Jakarta: Kencana Prenada Media Group, 2005), p. 24-27.

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Quarantine is the primary piece of
legislation in Indonesia that governs
health emergencies. The Indonesian
government is empowered by this law
to declare a health emergency and to
take the necessary steps to stop and slow
the spread of contagious illnesses. The
President of Indonesia has the power
to declare a health emergency when
there is a serious threat to public health.
According to the law, the government
is authorized to set up facilities for
quarantining and isolating people who
have been found to be contaminated with
contagious diseases. It also establishes
guidelines and regulations for isolation
and quarantine.
Further, to stop spread of contagious
diseases, the government may undertake
health checks at ports of entry or impose
limitations on travel. This includes
obligatory quarantine for incoming
tourists and screening procedures.
Authorities in charge of health have the
authority to monitor and report cases of
infectious diseases as well as perform
disease surveillance. Additionally, it
requires both individuals and healthcare
professionals to report cases that
are suspected or proven. To prevent
contagious diseases, the government
can impose travel limits, conduct health
checks, and enforce quarantines at

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entry points. Health authorities monitor
diseases and require reporting of
suspected or confirmed cases.
Article 12 of the Indonesian 1945
Constitution empowers the President to
declare a state of emergency if threats
endanger the people’s safety or the
country’s territorial integrity. The 1945
Indonesian Constitution that served as
the constitutional basis for this article
has not yet undergone any alterations or
changes.7 The President has the power and
the right to proclaim a perilous situation,
just like in times of war or peace. This
leads to a situation when an emergency
situation arises, unlawful actions are
permitted to be done by the President due
to a compelling need. However, it shall
be noted the actions or decisions must
be on the basis of reasonable necessity.8
Indonesia previously prevailed Act No.
74 of 1957 about the Establishment of a
State of Emergency, which is no longer
applicable based on the Government
Regulation In Lieu of Law No. 23 of 1959
regarding the Revocation of Law No.
74 of 1957 and Dangerous Conditions.
According to Article 1 paragraph (1) of
the Regulation, there are three criteria to
be considered as a state of danger, such
as: natural disasters; war or rebellion
acts; and certain events which could
endanger the sovereignty and territory of

Mahkamah Konstitusi Republik Indonesia, Naskah Komprehensif Perubahan Undang Undang Dasar
Negara Republik Indonesia 1945 (Jakarta: Sekretariat Jenderal dan Kepaniteraan Mahkamah Konstitusi,
2010), p. 363.
Jimly Ashidiqqie, loc. cit.

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Indonesia. Article 12 of the Constitution
and Perppu No. 23 of 1959 also do not
address who can oversee the legality
of the platform used during a state of
emergency. No institution or party can
oversee the medium employed during
a time of emergency. The institution
with the competence to oversee such
things must be in a branch of power
other than the executive.9 Moreover, in a
democratic country, the President must
seek public approval to proclaim a state
of emergency due to risks threatening
the nation, as it significantly restricts
freedoms. Therefore, the legislative body
should oversee and manage emergency
declarations.
Article 22 of the 1945 Indonesian
Constitution grants the President
the power to issue Government
Regulations in Lieu of Laws (Perppu)
during exigent circumstances, but these
must be approved by the House of
Representatives. This process differs
from the conditions outlined in Article
12.. This idea is emphasized with the
Constitutional Court Decision Number
003/PUU-III/2005, which defines the
phrase of “Kegentingan Yang Memaksa”
(Exigency Compel) under the Article
22 paragraph (1) of the Indonesian
1945 Constitution, as not always being

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related to a threat. Once the House of
Representatives approves a Government
Regulation in Lieu of Laws (Perppu),
it reflects the President’s subjective
judgment on an objective situation.
Article 22 involves three fundamental
elements in state administration: danger,
necessity, and time period. These criteria
are essential for classifying a situation
as exigent, allowing the government
to take legal action in response to
emergencies. This is in line with the
idea of Bagir Manan, who said that the
President may only issue a Perppu if it
meets certain requirements, it is issued
in cases of compelling urgency; it does
not regulate things that are regulated in
the Constitution; it does not stipulate the
existence and duties of the authority of
state institutions; and there may not be a
Perppu that can suspend and abolish the
authority of state institutions.10 Therefore,
the use of Perppu is driven by urgent
conditions that require regulations when
existing laws are inadequate or do not
serve the government’s interests.
Following the enactment of the
Perppu, the House of Representatives
(DPR) must uphold its oversight role in
law-based governance, as outlined in
Articles 5, 20, and 22 of the Indonesian
1945 Constitution. While the President can

Muhammad Yoppy Adhihernawan and Hernadi Affandi, “Limitation of The President’s Power
to Declare a State of Emergency: A Comparison of France, India, and Indonesia,” Jurnal Penelitian
Hukum De Jure 22, No. 2 (2022): 145-162, http://dx.doi.org/10.30641/dejure.2022.V22, p. 146.
Nur Rohim, “Kontroversi Pembentukan Perppu Nomor 1 Tahun 2013 Tentang Mahkamah Konstitusi
Dalam Ranah Kegentingan Yang Memaksa,” Jurnal Cita Hukum 2, No. 1 (1 Juni 2014): 117-132, https://
doi.org/10.15408/jch.v1i1.1454, p. 123.

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issue Perppu unilaterally, these measures
are temporarily valid and require the
House’s approval to become law. Since
both Perppu and laws hold equal status
under Act No. 12 of 2011, it is essential
for the DPR to oversee their creation
and enforcement, ensuring that Perppu
remains appropriate and not overly
broad. However, the Constitutional
Court does not have the authority to
review Perppu.11 Article 22 paragraph
(3) of the 1945 Indonesian Constitution
states that if a Perppu is not approved
by the House of Representatives, it must
be revoked by the President, although it
remains in effect until then. Article 52 of
Law Number 12 of 2011 reiterates that
unapproved Perppu must be revoked,
and clarifies that if it conflicts with existing
law, the Perppu takes precedence due to
the principle of lex posteriori derogat
legi priori. There are two categories of
extraordinary circumstances related to a
state of emergency: danger and exigency
compel. Article 12 emphasizes the
President’s authority in external threats,
while Article 22 focuses on internal
regulatory needs and the issuance of
Perppu. Cumulatively, the three essential
elements of a state of emergency are
dangerous threats, reasonable necessity,
and a limited time frame. In response to
the COVID-19 pandemic, the Indonesian
government declared a public health
emergency rather than a formal state of

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emergency, as seen in Presidential Decree
No. 11 of 2020. Emergency measures were
enacted without an official declaration,
which could be viewed as legally
questionable. The government also
introduced “Pembatasan Sosial Berskala
Besar” (PSBB) through Government
Regulation No. 21 of 2020 to curb virus
spread. Under Article 49 of Law No. 6
of 2018 on Health Quarantine, health
officials can impose various quarantines
and restrictions during a public health
emergency.
Instead of implementing regional
quarantine, the Indonesian government
opted for extensive social restrictions,
which rank lower than regional
quarantine under Law No. 6 of 2018.
Regional quarantine restricts access to
specific areas during emergencies, while
social limitations address public health
concerns. Article 154 of Law No. 36 of
2009 mandates that the government
inform the public about disease
transmission locations. Government
Regulation in Lieu of Law No. 1 of 2020
was enacted to manage COVID-19’s
economic impact. Concerns over this
regulation led to a judicial review request
to the Constitutional Court, which ruled
on September 28, 2020, in Decision No.
37/PUU-XVIII/2020. The Court stated
that the COVID-19 law is valid only until
the pandemic is officially declared over
by the President, emphasizing that laws

Jimly Ashidiqqie, Perihal Undang-Undang (Jakarta: Konstitusi Press, 2020), p. 9.

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during emergencies must provide legal
certainty as guaranteed by Article 28D
of the 1945 Constitution. The Court also
declared Act No. 2 of 2020 contrary to the
Constitution, limiting its effectiveness
until it is interpreted in light of the
pandemic’s status.
2. Judicial Review on Emergency
Law in Indonesia and Comparative
Overview
a. Judicial Independence of the
Constitutional Court
Judicial independence is crucial for
upholding the rule of law and ensuring
justice, regardless of circumstances.
The Constitutional Court of Indonesia,
established under the 1945 Constitution,
plays a key role in interpreting the
constitution, adjudicating disputes, and
protecting the constitutional rights of
citizens. It reviews the constitutionality
of laws both prior to and after
enactment, ensuring compliance with
constitutional principles. Additionally,
the Constitutional Court resolves
disputes between government branches
and issues regarding the legitimacy of
state institutions, serving as a check on
legislative and executive actions. The
Court also decides electoral outcomes
and handles political party dissolution
disputes, thus preserving democratic

processes. Its rulings are final, legally
binding, and set precedents that shape
Indonesia’s legal and political landscape,
ultimately safeguarding the rights and
freedoms of the Indonesian people.
The independence of the Constitutional
Court is very important in carrying out
its duties as an independent judicial
institution. The independence of the
Constitutional Court refers to the ability
of the Court to act freely and unaffected by
pressure or intervention from any party,
including the government, legislature,
or political interests. In Indonesia,
judicial independence is guaranteed by
Article 24 Section (1) of the Indonesian
Constitution. Furthermore, the Law
on the Judicial Power emphasizes
that the judicial branches. However,
decisions made by constitutional courts
are frequently politically sensitive and
address significant issues. On one hand,
issuing robust rulings that reinforce vital
constitutional principles can greatly
benefit citizens and enhance support
for democracy. Conversely, the court’s
assertive role in judicial review can
increasingly intrude upon the domain of
the law-makers.12
The
Constitutional
Court
of
Indonesia plays a vital role in
maintaining constitutional principles
and protecting citizens’ rights during

12

Radian Salman, Sukardi Sukardi, and Mohammad Syaiful Aris, “Judicial Activism or Self-Restraint:
Some Insight Into The Indonesian Constitutional Court,” Yuridika 33, No. 1 (8 Februari 2018): 145170, https://doi.org/10.20473/ydk.v33i1.7279, p. 145.

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emergency situations. Despite potential
adjustments required in institutional
operations amidst emergencies, the core
responsibilities of the Court remain
unchanged. Here are essential aspects
of its role in such contexts: Firstly,
the Court has the power to review
emergency measures to ensure they
align with the constitution, guarding
against violations of fundamental rights.
Secondly, it is tasked with protecting
individual constitutional rights, even
amid crises. This includes addressing
cases of rights violations and ensuring
that any restrictions are necessary,
proportional,
and
constitutionally
justified. Additionally, the Constitutional
Court acts as a check on the executive
branch, particularly when government
authority may be heightened during
emergencies. It ensures that emergency
powers are used within constitutional
limits, preventing potential abuse or
overreach. The Court also continues
its role in constitutional interpretation,
offering guidance on constitutional
issues to uphold the core principles and
values of the constitution. This provides
legal certainty and stability in times of
crisis. Moreover, it reinforces the rule
of law, making sure that government
actions and emergency measures remain
lawful and aligned with constitutional
mandates. This helps maintain the

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legitimacy of governmental operations
and averts arbitrary conduct during
emergencies. Finally, the independence
and impartiality of the Constitutional
Court are critical during crisis situations.
The Court must operate free from external
pressures,
including
governmental
or political influences, to ensure that
its rulings are based solely on legal
principles and constitutional fidelity.
Although the specifics of its operations
may be influenced by emergency
circumstances, the Court’s essential role
as the guardian of the constitution and
protector of constitutional rights is of
paramount importance13. Its decisions
and actions are key to upholding the rule
of law and ensuring that any emergency
measures adhere to democratic principles
and constitutional guidelines
b. Indonesian Constitutional Court
Oversight in Times of Health Crises
with Comparative Assesment
The main responsibility of the
Constitutional Court when examining
emergency laws during a pandemic is
to judge the constitutionality measures.
Depending on the constitutional
structure and legal system of the
country, the Constitutional Court may
apply different special considerations
and principles. The Constitutional Court
assesses how closely the emergency laws
adhere to the clauses and principles of

Rosa Ristawati and Radian Salman, “The Role of The Indonesian Constitutional Court in Preventing
Social Conflict in A Diverse Society,” Constitutional Review 9, No. 2 (31 Desember 2023): 332-357,
https://doi.org/10.31078/consrev925, p. 338.

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the constitution. It evaluates whether the
laws uphold the fundamental freedoms
and rights enshrined in the constitution
and whether any restrictions on those
rights are justified in light of the
pandemic. The Constitutional Court
evaluates whether the emergency laws
are reasonable in relation to the goals
they pursue. It determines whether the
restrictions are essential, logical, and do
not unreasonably violate fundamental
rights. The impact on individual rights,
the effectiveness of the measures, and the
severity of the pandemic are among the
things the court may take into account.
The Constitutional Court examines
whether the emergency laws uphold the
balance between the three branches of
government and the division of powers.
It makes sure that the executive branch
does not hold an excessive amount of
emergency power and that the right
checks and balances are in place to
prevent power abuse.
The Constitutional Court review
clauses of emergency laws to ensure that
emergency powers are not used arbitrarily
or for extended periods. It checks for
fairness and non-discrimination in
these laws, determining whether any
differential treatment is based on just and
impartial criteria rather than arbitrary
standards. The Court also scrutinizes
the legislative processes surrounding

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the implementation of emergency laws,
ensuring compliance with constitutional
requirements,
including
public
engagement and legislative deliberation.
Even during a pandemic, the Court’s
reviews aim to uphold the constitution
and protect citizens’ rights, ensuring the
government’s responses remain lawful
and within constitutional boundaries.
There is no separate Constitutional Court
in the United States. The Supreme Court,
which has the authority to conduct
judicial reviews and serves as the highest
court of the nation, is the final arbiter in
constitutional disputes.14 Even though
it is not referred to as a “Constitutional
Court,” the Supreme Court performs
similar duties in interpreting and
applying the U.S. Constitution. The U.S.
main duty of the Supreme Court is to
interpret the Constitution and make sure
that laws and government acts adhere to
its requirements. It has the authority to
examine whether laws, executive orders,
and other acts of the government at the
federal and state levels are constitutional.
By making rulings, the Court creates
legally binding precedents that influence
how the Constitution is interpreted and
direct subsequent legal disputes.
The U.S. Supreme Court is the highest
judicial body and serves as the final arbiter
on constitutional matters, exercising
judicial review. While not called a

L. Amanda Tyler, “Judicial Review in Times of Emergency: From the Founding Through The
Covid-19 Pandemic,” Virginal Law Review 109, No. 3 (2023): 489-594, https://virginialawreview.org/
wp-content/uploads/2023/05/Tyler_Book-1.pdf., p. 496.

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“Constitutional Court,” it performs
similar functions by interpreting the U.S.
Constitution and ensuring compliance
with its provisions. The Court reviews
the constitutionality of federal and
state laws, executive orders, and other
government actions, establishing binding
legal precedents that shape future cases.
It acts as a check on the other branches
of government, protecting individual
liberties and civil rights. The President
nominates nine justices for life, with
Senate advice and consent. The justices
deliberate, issue written opinions, and
rule on the constitutionality of legislation
and presidential actions. The U.S.
Supreme Court, as the highest judicial
body in the country, plays a crucial role
in interpreting the Constitution and
upholding constitutional principles,
including during times of emergency.
Here are some key aspects to consider.
First is Judicial Review. The U.S.
Supreme Court has the power of judicial
review, which allows it to review the
constitutionality of laws, executive
actions, and government measures.
This power remains in effect during
emergencies, enabling the Court to assess
whether emergency actions are consistent
with constitutional provisions. Next,
Safeguarding Constitutional Rights. The
Supreme Court has the responsibility to
protect individual rights, even during
emergencies. It can hear cases related to
violations of constitutional rights and
ensure that emergency measures do not
unreasonably infringe upon fundamental
liberties guaranteed by the Constitution.
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During emergencies, the Supreme
Court plays a critical role in balancing
national security and civil liberties,
ensuring that emergency measures are
necessary, narrowly tailored, and do
not overly infringe on individual rights.
The Court continues to interpret the U.S.
Constitution, shaping the legal landscape
and establishing precedents for future
emergency-related cases. Additionally, it
acts as a check on the other branches of
government, including the executive, to
prevent abuses of authority.
The independence and impartiality
of the Supreme Court are essential,
requiring justices to base their rulings
on legal analysis and constitutional
principles without succumbing to
political pressures. During the COVID-19
pandemic, the Court has confronted
legal challenges related to public health
and individual rights, addressing
issues such as restrictions on religious
gatherings and freedom of movement,
while also reviewing the executive
branch’s authority in implementing
these measures. The Supreme Court has
assessed challenges to executive orders
and emergency restrictions to determine
whether they exceed constitutional
boundaries or violate personal freedoms.
The pandemic has also disrupted
electoral processes, resulting in legal
disputes regarding voting rights and
protocols—such as early voting and
mail-in ballots—that often raise issues
of due process and equal protection.
Moreover, the pandemic has affected
court operations, leading to delays in
11

justice. The Supreme Court has navigated
matters regarding in-person proceedings,
legal deadlines, and remote hearings,
aiming to maintain a balance between
administering justice and safeguarding
public health and constitutional rights.
The crisis has heightened discussions
about the division of power between the
federal government and the states, with
the Court considering cases involving
disputes over quarantine measures,
commercial laws, and enforcement of
public health regulations. It is important
to acknowledge that the Supreme Court’s
decisions throughout the COVID-19
pandemic have varied based on the
unique circumstances and justifications
presented in each case. In making these
rulings, the Court sought to balance
the needs of public health, individual
rights, and government authority while
fulfilling its role as interpreter of the law
and the Constitution.
The Constitutional Courts of
Indonesia and the U.S. Supreme
Court function within different legal
frameworks and have distinct roles.
The U.S. Supreme Court is the highest
appellate court and also has the power
of judicial review, while Indonesia’s
Constitutional
Court
focuses
on
constitutional matters. The Indonesian
Court assesses the constitutionality
of legislation and government actions
related to the COVID-19 pandemic,
ensuring compliance with constitutional
standards. Conversely, the U.S. Supreme
Court reviews the constitutionality of
laws and executive actions during the
12

pandemic. Both courts have been crucial
in evaluating emergency measures,
with the Indonesian Court reviewing
public health regulations and electoral
processes, while the U.S. Supreme Court
addressed cases related to restrictions on
religious gatherings and voting rights.
Each court safeguards individual rights,
with Indonesia’s Court ensuring that
emergency measures do not unfairly
infringe on fundamental rights, and
the U.S. Court balancing public health
initiatives with individual freedoms.
Moreover, both courts play significant
roles in protecting democratic processes,
resolving election-related disputes, and
addressing legal matters concerning
voting procedures amidst the pandemic.
Despite their similar responsibilities, the
differences in legal systems, constitutions,
and court processes in Indonesia and
the U.S. have influenced their respective
responses to the challenges posed by
COVID-19.
The Supreme Court of the Philippines
serves as the highest court, responsible for
interpreting the constitution, assessing
the legality of government laws and
actions, and protecting constitutional
rights. It has the power of judicial review
to ensure compliance with the 1987
Philippine Constitution by evaluating
laws and executive orders. The Court
explains and safeguards fundamental
rights, such as equal protection, due
process, and civil liberties, and it hears
cases involving violations of these rights.
As the ultimate adjudicator of legal
issues, the Supreme Court addresses
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administrative, criminal, and civil cases,
resolving disputes between the executive
and legislative branches as well as
between federal and local governments.
Additionally, it has administrative
responsibilities,
regulating
lower
courts, overseeing legal education, and
reviewing presidential appointments
to ensure they meet constitutional
standards. During crises or national
emergencies, the President can exercise
emergency powers under the Philippine
Constitution. A state of emergency may
be declared in response to threats like
natural disasters or pandemics, enabling
the government to act effectively.
However, the use of emergency powers
must adhere to legal and constitutional
standards, and fundamental rights,
such as life and liberty, cannot be
compromised.
The Philippine Constitution requires
that Congress, as a co-equal branch of
government, exercises oversight over
the President’s exercise of emergency
powers. Congress can review and
determine the validity and continuation
of the declaration of a state of
emergency. Additionally, Congress may
set limitations and conditions on the
exercise of emergency powers through
legislation. The Philippine Supreme
Court has the power of judicial review
and can examine the constitutionality
of emergency measures or actions taken
by the government during a state of
emergency. The Court ensures that the
exercise of emergency powers remains
within constitutional boundaries and
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that individual rights are protected. It
is important to note that the specific
provisions and extent of emergency
powers may differ based on the
circumstances and the legal framework
in place at the time of the emergency.
The exercise of emergency powers is
intended to address and mitigate crises
effectively while upholding the rule
of law and respecting constitutional
rights. The Court makes sure that the
use of emergency powers respects
individual rights and stays within
constitutional bounds. It is significant
to remember that the particular clauses
and scope of emergency powers may
vary depending on the situation and
the applicable legislative framework
at the time of the emergency. In order
to effectively confront and ameliorate
emergencies while protecting the rule of
law and respecting constitutional rights,
emergency powers must be used.
The Supreme Court of the Philippines
preserves its power and responsibility
to uphold constitutional principles in
times of crisis, such as a public health
emergency or natural disaster. While
the precise reaction may change based
on the situation. To make sure that laws,
rules, and government acts, including
emergency measures, are in compliance
with the provisions of the Philippine
Constitution, the Supreme Court uses its
authority of judicial review. It can assess
whether the government’s emergency
response plans were constitutionally
sound. In times of crisis, the Supreme
Court is essential to finding a balance
13

between preserving fundamental rights
and promoting the general welfare. It
assesses whether emergency measures
are essential and proportional to meet
the emergency situation and whether
they unreasonably violate any individual
rights guaranteed by the constitution.
Even in times of crisis, the Supreme Court
makes sure that the law is followed. It
examines cases to see if the right of the
people to a fair trial, due process, and
access to justice are upheld, and it can
take action if these rights are infringed.
The Supreme Court offers a platform
for people and organizations to seek just
compensation for alleged constitutional
infractions in times of crisis. It hears cases
arguing against the constitutionality
of emergency measures or requesting
compensation for the violation of
constitutional rights. The Supreme Court
acts as a check on the other parts of the
government, even in times of crisis.
In order to guarantee that emergency
measures do not go beyond what the
Constitution permits and that the balance
of powers is preserved, it can examine
and restrict the use of presidential
power. Even while the Supreme Court’s
exact decisions and actions may change
based on the situation and the issues
that are brought to it in an emergency,
its basic function in maintaining the
constitution and defending individual
rights remains crucial. In these trying
times, the court’s ruling helps to uphold
the rule of law and the constitutional
system. Even in times of emergency,
judicial independence is of the utmost
14

significance in the Philippines. While
certain actions may be required in urgent
situations to solve the crisis, maintaining
the norms of judicial independence is
crucial to ensuring the impartial and fair
administration of justice.
Even in times of emergency, the court
is essential to safeguarding fundamental
freedoms. Judges must continue to
protect individual rights and make
sure that these rights are not unduly
violated by emergency measures. The
court, including the Supreme Court,
has the power to examine whether the
government’s emergency actions are
constitutional. It makes sure that these
actions are appropriate, necessary, and
consistent with constitutional guidelines
while upholding fundamental rights.
Judges and justices must maintain their
independence from outside forces,
such as the executive and legislative
departments, in order to maintain their
judicial independence. They should
be immune from political pressure or
influence and make decisions based on
the law, the evidence, and constitutional
principles.
Even during emergencies, the values
of justice and due process must be
upheld. Individuals facing legal action
or restrictions due to an emergency are
entitled to a fair and impartial hearing,
with judges ensuring transparency
and accountability while maintaining
independence. The judiciary should
continue its essential functions during
crises, potentially using innovative
methods like remote hearings, all
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while safeguarding due process rights.
Collaboration among the executive
branch, judiciary, and other stakeholders
is vital, but this cooperation must not
compromise judicial independence or the
ability to deliver impartial judgments.
Preserving
judicial
independence
is crucial for protecting individual
rights, upholding the rule of law, and
maintaining public trust in the justice
system. The judiciary must balance the
urgency of emergency responses with
the principles of fairness, impartiality,
and constitutional adherence.
Ensuring judicial independence is
crucial for upholding the rule of law,
protecting constitutional rights, and
maintaining public confidence in the
judicial system during the pandemic.
The
Indonesian
Constitutional
Court is dedicated to examining the
constitutionality of pandemic-related
laws and regulations, striving to maintain
its independence, impartiality, and
integrity while ensuring that emergency
measures comply with constitutional
standards and uphold individual rights.
The U.S. Supreme Court plays a vital
role in interpreting the Constitution and
validating laws during the pandemic,
emphasizing judicial independence
and protecting individual rights as it
checks other branches of government.
The Court reviews cases involving

15

16

potential violations of constitutional
rights to prevent government actions
from undermining personal freedoms.
Similarly, the Supreme Court of the
Philippines conducts judicial review to
ensure the legality of pandemic-related
laws and measures. It also emphasizes
judicial independence and scrutinizes
cases related to due process violations
and attacks on individual rights, ensuring
fair and just proceedings
Judicial independence is essential for
effectively managing the pandemic in
all three countries. Their Constitutional
Courts are responsible for interpreting
the constitution, reviewing emergency
measures, protecting individual rights,
and upholding the separation of powers,
making decisions based on law and
evidence without external influence.
Maintaining
judicial
independence
is vital for upholding the rule of law
and constitutional rights during the
pandemic. Although court independence
can impact the quality of laws from
the executive and legislative branches,
assessing the quality of emergency laws
is difficult due to their unique contexts.15
Hence, we believe that by reviewing
the emergency law, the independence
of court is being tested. This is because
even during emergency, the judges are
responsible to ensure and maintain
the rule of law.16 But there is some

Tom S. Clark, The Limits of Judicial Independence (Cambridge: Cambridge University Press, 2010), p.
256.
Victor V. Ramraj, Emergencies and the Limits of Legality (Cambridge: Cambridge University Press,
2008), p. 8.

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15

flexibility that can be exercised by the
court during the emergency since the
“emergency” is an extraordinary event.17
By using this indicator, we later can see
the independence of the judge of the
Constitutional Court during reviewing
the Perppu that was produced when a
health emergency was declared by the
President.
Scholars often distinguish judicial
independence into two components:
institutional (court) independence and
individual
(judge)
independence18.
Achieving court independence requires
ensuring that each judge is independent.
This independence can be assessed from
both objective and subjective perspectives.
Objectively, it involves adherence to legal
standards, while subjectively, it relates
to public trust in judges. In the context
of reviewing the COVID emergency law,
the Constitutional Court addressed one
case—Perppu 1/2020—documented in
Court Decision No. 37/PUU-XVIII/2020.
In this ruling, three judges, including
Justice Daniel Yusmic, expressed
dissenting opinions. Justice Yusmic
argued that since the Perppu was enacted
due to a health emergency, there was no
legal basis for its review, highlighting
issues of judicial independence. Scholars
note that judges’ independence can also
be influenced by external factors, such as

17

18

16

social and psychological pressures, with
social dynamics playing a significant role
in decision-making. This phenomenon
can be described as a legal culture.
Specifically, judges who issue dissenting
opinions may face societal pressures, yet
these opinions are ultimately expressions
of
judicial
independence.
This
conclusion is supported by previously
mentioned indicators. Although Justice
Daniel Yusmic was appointed by
the President, his dissenting opinion
remains independent since it aligns with
the Indonesian Constitution and positive
law. Additionally, Justice Yusmic
retained the trust of Indonesian society
even after the final court decision was
rendered.

D. CONCLUSIONS
During emergencies, governments
may impose restrictions on the rights of
individuals and institutions, including
those of the Constitutional Court, which
can undermine judicial independence
and reduce its authority. However,
preserving the Court’s independence is
critical for upholding the rule of law and
allowing it to function without political
interference. Many constitutions protect
this independence even in times of
emergency to ensure unbiased oversight.

Martin H. Reddish, Judicial Independence and The American Constitution (Stanford: Stanford Law Book,
2017), p. 172.
Frank B. Cross, “Thoughts on Goldilocks and Judicial Independence,” Ohio State Law Journal 64, No.
1 (2003), p. 19.

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In the case of judicial review of emergency
law over COVID-19, the Indonesian
Constitutional Court found that certain
provisions of Perppu No. 1/2020 to be
partially unconstitutional. Consequently,
it is vital to uphold the independence
of the Indonesian Constitutional Court
in scrutinizing emergency regulations,
as this is essential for safeguarding
constitutional rights during public health
crises. This approach promotes judicial
autonomy, enhances transparency, and
encourages stakeholder participation,
thus striking a balance between the
necessity of crisis management and the
protection of constitutional rights.

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