Judicial Review on Health Emergency Law: The Challenge to Judicial Independence of Indonesian Constitutional Court

Authors

DOI:

https://doi.org/10.25072/jwy.v9i1.4314

Keywords:

Constitutional Court, Emergency Law, Independence, Judicial Review.

Abstract

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.

Author Biographies

Radian Salman, Faculty of Law Airlangga University, Surabaya, Indonesia

Dr. Radian Salman, LL.M (email: radian.salman@fh.unair.ac.id ) is Program Coordinator at Master of Science in Law and Development Postgraduate School and also a Director of Center for Constitutional and Governance Studies Faculty of Law, Airlangga University, Surabaya, Indonesia. He teaches courses in Constitutional law, Comparative Constitutional Law, Legislative Drafting, and Good Governance. His expertise and research interests are : Court and the Constitution, Judicial Review and Constitutionl Court, Constitutional Interpretation, Election Law and Good Governance. His last publications are research project on study of UUD NRI 1945 (Indonesian Constitution), Reformulation of People Representative Assembly (with Research Center of People Representative Assembly) book chapter on populism published in Populism and Democracy as co author (Edited by Sascha Hardt and Aalt Willem Heringa, Eleven International Publishing, The Hague, the Netherlands, 2020) and article on Judicial Populism published in the Constitutional Review Journal, 2020. Radian wrote a book chapter on for the International Review of Constitutional Reform 2020, (Program on Constitutional Studies at the University of Texas at Austin and the International Forum on the Future of Constitutionalism).

Rosa Ristawati, Faculty of Law Airlangga University, Surabaya, Indonesia

Dr. Rosa Ristawati (email: rosa@fh.unair.ac.id ) is a lecturer of Constitutional Law at the Faculty of Law as well as the coordinator for International office at the post-graduate school, Airlangga University Indonesia. She teaches courses in Constitutional Law, Comparative Constitutions, Comparative Constitutional Law, Constitutional Court and Procedural Law, and Constitutional Theory. She holds Bachelor Law degree (Sarjana Hukum) from Airlangga University, Indonesia, Master of Laws (LL.M) from RuG Groningen University, the Netherlands, and PhD from Maastricht University, the Netherlands. She wrote a book chapter on populism published in Populism and Democracy (Edited by Sascha Hardt and Aalt Willem Heringa, Eleven International Publishing, The Hague, the Netherlands, 2020). Dr. Rosa Ristawati has also published collaboration articles, including: Food security of genetically modified crops: the roles of the states in Malaysia and Indonesia to protect farmers’ rights (co-authoring with Dr. Siti Hafsyah (UITM, Malaysia, 2020), The Constitutional Power Of The Executive in The Age of Rule of Law: A Comparative Study on Malaysia and Indonesia (co-authoring with Dr. Noorazlina binti Abdul Aziz (UITM, Malaysia, 2020), as well as her article on Judicial populism which published on the Constitutional Review, MKRI, 2020. She is project coordinator for an institutional collaboration project (“21st Century Legal Professionals for the Rule of Law: strengthening skills, ethics, and integrity in Indonesian legal education”), a project under the Ministry for Foreign Trade and Development Cooperation through NUFFIC which is a part of Orange Knowledge Program (OKP) program.

Bernard Nicholas Singarimbun, Universität Hamburg, Germany

Bernard Nicholas Singarimbun is Master of Law Student at Faculty of Law, Universität Hamburg.

References

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Published

2025-06-03

Issue

Vol. 9 No. 1 (2025): 2025

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Full Article

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