Formal Constitutional Review of the Legislative Process: An Obvious Accommodation or an Innovation for Democracy?

Abstract

Under the Indonesian constitution, the Constitutional Court exercises the power to review laws against the constitution. For the first time since its establishment in 2003, the Constitutional Court recently addressed not only the norms of the law but also undertook a judicial review of the procedure of law-making through court decree number 91/PUU-XVIII/2020. The Constitutional Court affirmed that Law Number 11 of 2020 concerning Job Creation (Omnibus Law) was formally flawed in its legislative process. The Court stated that the Job Creation Law was conditionally unconstitutional because the omnibus law infringed upon the principle of meaningful participation. Therefore, the House of Representatives (DPR) and the Government must revise it by the procedures for establishing the applicable law within a maximum period of two years. This article finds that the Constitutional Court’s decision to review the procedural aspects of law-making indicates the development of a discourse on the protection of procedural rights. This is an innovation in the perspective of the development of the rule of law and democracy in Indonesia although the decision creates a difficult situation for lawmakers to interpret and implement.