Constitutional Justice Wahiduddin Adams delivering a presentation at the closing of the Airlangga Law Competition, Sunday (5/28/2023) at Graha BIK of the Medical Faculty of Airlangga University, Surabaya, East Java. Photo by MKRI/Agung.

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(MKRI) — Constitutional Justice Wahiduddin Adams delivered a presentation in person on “The Urgency of the Constitutional Court’s Constitutional Preview Authority for Modernization of Indonesian Law” at the closing ceremony of the Airlangga Law Competition (ALC) IV 2023 on Sunday, May 28, 2023 at Graha BIK of the Medical Faculty of Airlangga University, Surabaya, East Java Province.

“The theme is focused on the concept of constitutional preview. My presentation will be divided into two parts. First, I will explain and critique the use of the term constitutional preview. Second, I will discuss the compatibility or possibilities for adopting the authority in question into the Constitutional Court,” he said.

He further explained that the term constitutional preview was popularized by first chief constitutional justice Jimly Asshiddiqie. In his book Procedural Law for Reviewing Laws, Jimly distinguishes between “review” and “preview.” “Review” concerns the review of a piece of legislation that has been passed and promulgated, thus is generally binding. Meanwhile, “preview” concerns the review of a draft piece of legislation that has not yet been ratified or promulgated. To support the argument of the distinction, Jimly draws an analogy between this “review” and how France review regulations before they are enacted.

“Indonesian academics often use the distinction between ‘review’ and ‘preview’ by Prof. Jimly in their academic articles and undergraduate and master’s theses. However, its use is not followed by critical thinking of questioning its truth. Although it was popularized by a professor, it should not necessarily be accepted automatically,” Justice Wahiduddin emphasized.

He further said that in academic articles written in English, the term “constitutional review” is applied. To distinguish between constitutional review carried out before and after the legislation is passed, the terms “a priori” and “a posteriori” are used, where the former signals before and the latter after a legislation is passed. Reviewing legislation after it is passed constitutes the authority of the Constitutional Court of the Republic of Indonesia.

In common law jurisdictions, he continued, the concept of judicial review is understood as a “material testing” of the content of laws and regulations. The concept of “formal testing” is unusual because it violates the concept of separation of power. Lawmaking process is under the legislatures’ jurisdiction. If a court is given the authority of “formal testing,” it would be intervening in assessing the legislatures’ performance.

However, this does not mean that academics who write in English do not try to explore “formal testing.” The discourse on “formal testing” is also of interest to English-speaking academics. Only, the term “formal review” cannot be equal with “formal testing.” English articles generally use the term “judicial review of legislative process” or “due process of lawmaking” as the equivalent of the term “formal testing”.

Justice Wahiduddin asserted that Indonesia does not adopt an a priori constitutional review. The Constitutional Court is authorized to review laws against the Constitution, thus a posteriori, that is, if a bill has been passed into law, the Constitutional Court then has the authority to review the constitutionality of both its formation process and content.

Institutionally, he continued, there are fundamental differences between court and council. Thus, a direct comparison between the constitutional review mechanism of France and Indonesia cannot be made.

In addition, it must also be critically considered whether we have an urgent need to adopt a priori constitutional review. The practical complication that will potentially arise is that the court will be involved in the practical political process as an effort to make policy in the form of legislation while, in fact, the judiciary should be neutral and impartial.

However, this does not mean that a priori constitutional review cannot be adopted. From a comparative point of view, there are several countries where the Constitutional Court is authorized to conduct a priori review.

The limitation is that constitutional review not be carried out for all legislative products. There are at least three pieces of legislation that can be the object of review before they are enacted as generally binding law: (1) the ratification of international treaties or conventions; (2) results of referendums; and (3) amendments to the constitution. 

Author       : Utami Argawati
Editor        : Nur R.
Translator  : Yuniar Widiastuti (NL)

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.

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