Jimly Asshiddiqie delivering a speech at a webinar organized by the Constitutional Court and the Law Faculty of University Islami Kadiri, Wednesday (8/6/2025). Photo by MKRI/Bayu.

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JAKARTA (MKRI) — In collaboration with the Law Faculty of University Islami Kadiri (Kadiri Islamic University) or FH UNISKA, the Constitutional Court (MK) held a webinar on “The Principle of Checks and Balances and the Constitutional Court’s Independence” on Thursday, August 7, 2025. First chief justice of the Constitutional Court of 2003–2008 Jimly Asshiddiqie presented a keynote speech alongside moderator Saivol Virdaus, director of the Center for Democracy and Constitutional Studies (Pusdeko) of FH UNISKA.

In his presentation, Jimly underscored the fundamental importance of checks and balances within Indonesia’s administration system, and emphasized the pivotal role of the Constitutional Court as the guardian of the Constitution. “Checks and balances are a fundamental principle in any democracy. Power must be subject to oversight, both among the branches of government and by civil society,” he said. 

Social Checks and Balances

Speaking before approximately 500 participants from across Indonesia, Jimly introduced the concept of social checks and balances—a development of Montesquieu’s classical theory. This expanded notion of oversight goes beyond state institutions to include the social and public spheres. He argued that public supervision over government actions is vital to ensure that democracy is not merely procedural but also substantive. 

Constitutional Court as Guardian of Constitution

Jimly explained that the Constitutional Court was established to meet the demands of a just and healthy democratic system. Although it is composed of only nine justices, its authority is highly strategic—primarily the power to review the constitutionality of laws.

“The Constitutional Court is authorized to annul a law—or even a single word within a provision—if it is found to violate the Constitution. This serves as a corrective mechanism against political decisions made by the majority, which are not necessarily just,” he explained.

He further stressed the critical importance of judicial independence, as mandated by Article 24 of the 1945 Constitution. In his view, judicial independence is essential in balancing the influence of the legislative and executive branches in a democratic system. 

Learning from History

Jimly also referenced the history of judicial review, which began in the United States with the landmark decision Marbury v. Madison (1803) by Chief Justice John Marshall. That decision laid the foundation for modern constitutional jurisprudence and inspired the establishment of constitutional courts in many countries.

“Even during the time of Thomas Jefferson, the U.S. Supreme Court had the authority to invalidate laws. Similarly, Indonesia’s Constitutional Court must possess the courage to uphold the Constitution,” he said.

He also noted the emergence of various independent institutions in the post-Reform era, such as the Corruption Eradication Commission (KPK), the General Elections Commission (KPU), the Ombudsman, and the Bank of Indonesia. He argued that these institutions represent concrete expressions of modern checks and balances.

“All of these institutions must be free from political interference. If they are all dominated by a single political coalition, our democracy risks becoming merely formalistic and losing its critical corrective function,” he asserted. 

Democracy Needs Room for Criticism

Concluding his lecture, Jimly urged students and academics to uphold the spirit of democracy by actively contributing feedback on public policies.

“Deliberative democracy—one that provides room for discussion and criticism—is far more important than a purely procedural democracy held once every five years. Minority voices must also be protected,” he concluded. 

Nature of Constitutional Court Decisions

During the Q&A session, participants raised concerns regarding controversial Constitutional Court decisions. Jimly clarified that the Court’s rulings are final and binding, as stipulated by the 1945 Constitution and the Law on Judicial Authority.

“We must distinguish between a Constitutional Court decision and a law that has been amended after the decision. While the Court’s ruling cannot be appealed, a revised law may be subject to judicial review again, provided there is a new legal rationale or constitutional basis,” he explained.

He reiterated that the public should not challenge the content of Constitutional Court rulings directly, as they carry the same legal standing as legislation and cannot be overturned through ordinary legal channels. However, it remains possible to reexamine newly enacted laws resulting from a prior Court decision, so long as new legal arguments are presented that were not considered previously.

Responding to the debate over whether Constitutional Court decisions are subject to the Law on Judicial Authority, Jimly clarified that although all judicial bodies are generally bound by the law, under Indonesia’s legal hierarchy, the Constitution takes precedence over ordinary legislation.

“Therefore, a Constitutional Court decision cannot be deemed invalid merely because it is perceived to violate provisions in the Judicial Authority Law. The only lawful means to annul a law is through judicial review at the Constitutional Court. There is no mechanism to challenge a binding Constitutional Court decision,” he emphasized.

Author         : Utami Argawati
Editor          : N. Rosi
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 versions, the Indonesian version will prevail.

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