The Shift of The Constitutional Court's Role from A Negative Legislator to A Positive Legislator in Testing Laws: Constitutional Problems and Reconstruction of The Limits of Authority

Abstract

The practice of judicial review by the Constitutional Court of the Republic of Indonesia shows a significant shift from its initial design as a negative legislator to a role characterized by a positive legislator. This shift is evident in the widespread use of conditional constitutional and conditional unconstitutional rulings, the formulation of new norms in rulings, the postponement of the enactment of laws accompanied by orders for the formation of laws, and rulings that redesign the architecture of the state system. This study aims to analyze the constitutional basis for this shift in role and formulate limiting parameters that can maintain a balance between constitutional supremacy and democratic legitimacy. The study uses a normative juridical method with a statutory approach, a conceptual approach, a case approach, and a historical approach, which are analyzed qualitatively prescriptively. The results of the study show three main findings. First, there is no textual prohibition in Article 24C of the 1945 Constitution of the Republic of Indonesia against the positive role of the legislature, and the legislative restrictions previously formulated in Article 45A and Article 57 paragraph (2a) of Law Number 8 of 2011 have in fact been declared unconstitutional by the Court itself. Second, although not formally prohibited, the practice of positive legislature gives rise to three constitutional problems: the blurring of the boundaries of the separation of powers, a deficit in democratic legitimacy (counter-majoritarian difficulty), and the risk of judicial instrumentalization for short-term political interests, as reflected in Decision Number 90/PUU-XXI/2023. Third, the reconstruction of the boundaries of authority is necessary through five cumulative parameters: direct connection to constitutional rights, the absence of less restrictive alternative solutions, clarity of constitutional basis, respect for open legal policy space, and methodological transparency in legal reasoning. This study recommends regulating the typology of rulings in the revision of the Constitutional Court Law, accompanied by strengthening ethical mechanisms and the establishment of more participatory procedural law.