A Proposal to Adopt Concrete Judicial Review in Indonesian Constitutional Court: A Study on the German Federal Constitutional Court Experiences

Abstract

The study aims to propose an adoption to concrete judicial review in Indonesian Constitutional Court based on the experiences of the German Federal Constitutional Court. It was motivated by the weak protection of citizen’s constitutional rights in ordinary court; and the absence of concrete judicial review authority at the Indonesian Constitutional Court. This study used doctrinal legal research method with legal documents or regulations, cases, and comparative analyses. This concrete review confirms the role of judges of ordinary courts in proceeding with the constitutional system, especially in protecting fundamental rights from the legislatures’ law violations based on Articles 93, 94, and 100 of the German Basic Law and the GFCC Act. The Indonesian Constitutional Court needs a concrete review authority in the future and the GFCC is the best judicial reference. There are several constitutional and legal arguments. Constitutional arguments and legal facts explain the necessity of the authority for the Indonesian Constitutional Court. Firstly, there are many cases faced by Indonesian Constitutional Court. Secondly, it can provide solutions for the dualism judicial review problem on conflicted decisions between the Constitutional Court and the Supreme Court. Thirdly, it can strengthen the role of judges in the Supreme Court (general, religious, military, and administrative courts) to generate the obligation to uphold the 1945 Constitution. The proposal through the amendment of the 1945 Constitution is an ideal way to create legal certainty and to strengthen institutions for the protection of fundamental rights in Indonesia.