Questioning the Legitimacy of Indonesian Constitutional Court Decisions:

A Review of Norms and Ethics from a Shari'ah Perspective

Dwi Andayani Budisetyowati

Adi Nur Rohman

 

Abstract: The decisions on important questions of law made by the Indonesian Supreme Court acting as Constitutional Court are different from the determinations made by the lower courts. This is because decisions of the Constitutional Court’s - are final and binding therefore creating new norms in the Indonesian legal system. Constitutional Court judges are considered "representatives of God", and it is imperative that they always adhere to the principles of justice including legal legitimacy, as well as political and social ethics. Apart from that, divine values enshrined in the principles of Shari’ah law must always be built as the basis for the Constitutional Court decisions. If a decision does not meet these judicial principles, the legal norm it creates is considered defective. Through a statutory approach and an analysis of decided cases, this article examines and criticises the neutrality of Constitutional Court judges. This article argues that the decisions of Constitutional Court judges are full of conflicts of interest, especially from a Shari’ah legal perspective. Especially, the Constitutional Court’s decision Number 90/PUU-XXI/2023 has become a polemic because the decision regarding the presidential election in this case was taken by a judge who was related to one of the presidential election contestants. Moreover, the judge who decided this case was also found guilty of committing serious ethical violations. This article concludes that, as the Constitutional Court's decision is final and binding and has the same status as the law, the process of handing down the Constitutional Court's decision must be in line with the principles of law, politics, correct social ethics and Shari’ah values. If these principles are violated, the Constitutional Court’s decisions will continue to produce legal and social fragmentation where the decisions are suspected to be full of conflicts of interest and violate transcendental values. This will damage public trust in judicial system and weaken the authority of the Constitutional Court.