This op-ed reflects the author’s personal views and does not necessarily represent those of The Reformist.
Indonesia’s Constitutional Court (Mahkamah Konstitusi, or MK) has increasingly behaved more like a lawmaker than an adjudicator. Despite its mandate as the guardian of the Constitution, it has been issuing decisions that go beyond interpretation and verge on legislation.
Most recently, it ruled that presidential and legislative elections must be held at least 2.5 years apart, a decision with no clear constitutional grounding. However well-meaning the substance of these rulings may be, the method of achieving them, creating new legal norms from the bench, is procedurally illegitimate, democratically unaccountable, and corrosive to constitutional governance.
The 1945 Constitution mandates that the MK carry out judicial review, resolve disputes over constitutional authority, adjudicate electoral disputes, and review laws against constitutional standards. Its role is to strike down laws that violate constitutional principles, not to rewrite them or substitute its own policy preferences. That responsibility belongs to the DPR and executive branch, both of which are accountable to the people.
The Court has blurred this line repeatedly. What began as a limited tool to prevent unconstitutional statutes from causing legal vacuum has evolved into a pattern of conditional rulings that effectively insert new legal norms. The MK’s favored mechanism is the phrase “inkonstitusional selama tidak diartikan sebagai” (“unconstitutional unless interpreted as”), which keeps a law nominally intact but changes its meaning entirely.
Perhaps the most troubling example is the infamous Putusan 90/PUU-XXI/2023, which cleared the way for President Jokowi’s son, Gibran Rakabuming Raka, to run for vice president despite a legal age requirement of 40 years. The Court declared the provision in the Elections Law unconstitutional unless interpreted as “at least 40 (forty) years old or has held/is holding a position elected through a general election, including regional head elections.”
This was a clear overreach. Rather than invalidating the provision outright, the Court rewrote it, effectively creating new legal norms beyond its mandate. The fact that the decision was rushed and issued amid serious ethical violations by one of the justices only deepens the concern.
It is worth noting that the government coalition held a majority of the seats in the House of Representatives, more than enough to amend the Elections Law through the proper legislative process to accommodate Gibran’s candidacy. However, such a move would have been deeply unpopular, and no political party would be willing to spend the political capital to push it through. Instead, they chose the judicial route, effectively outsourcing the controversy to the MK. This cannot become common practice. If politicians want to pass questionable or self-serving laws, they should do so transparently and face public accountability, not hide behind the judiciary.
We have to admit that some conditional rulings actually churned out decent policy. For instance, it deemed the regional election electoral threshold of 20% local parliament seats (or 25% vote shares) unconstitutional, unless interpreted as 7.5% for regions with a population of 6 to 12 million, among other thresholds. If we’re being honest, this is an even more bizarre judicial overreach than Putusan 90.
More recently, it ordered that national and regional elections be staggered 2.5 years apart to reduce political fatigue, creating a “midterm elections” cycle in Indonesia.
These may sound like good and thoughtful election policies, but those are exactly what they are: policy decisions, not constitutional questions. Nowhere in the Constitution is the MK authorized to dictate election calendars or modify electoral thresholds. That is the legislature’s role.
This expanding scope of judicial intervention has not gone unnoticed by the House of Representatives (DPR). The DPR once attempted to rein in the MK through Law No. 8 of 2011 (Chapter 57 Verse 2a), including a ban creating new legal norms. In response, the MK conveniently struck down those very provisions, asserting its own jurisdiction without accepting external checks. In effect, it declared itself the sole arbiter of its boundaries, an extraordinary power in a democratic system.
Worse, the MK has become the go-to venue for contesting unpopular laws, not necessarily unconstitutional ones. DPR Deputy Speaker Sufmi Dasco Ahmad once said that if someone disagrees with a law, they should “just challenge it in the MK.” This reflects a fundamental misunderstanding. Despite the MK being all too happy to adjudicate policy decisions, it is not the venue for policy correction, but for constitutional enforcement. It is meant to invalidate unconstitutional laws, not improve, reinterpret, or rewrite them.
There are two reasons this judicial overreach must be addressed:
It undermines democratic legitimacy. The MK’s nine justices are appointed, not elected, three each by the president, DPR, and Supreme Court. While this ensures institutional balance, it does not make the Court politically accountable. In a democracy, laws must be created by those who answer to voters.
MK decisions are final and binding. Unlike laws passed by the DPR, they cannot be revised or repealed. When the Court creates new obligations or rights outside the constitutional text, there is no democratic remedy or legislative correction. This grants unelected judges a level of authority that even the DPR does not hold.
Yes, it’s hard to trust the DPR. The institution is often slow, self-interested, and unresponsive to public concerns. In that vacuum, it can feel reassuring, even satisfying, to see the MK step in and impose what looks like better, fairer outcomes. But this is precisely why judicial restraint matters.
The legitimacy of a democracy is not judged by how quickly problems are solved, but by how faithfully institutions follow their mandates. When unelected judges take over the role of lawmakers, no matter how noble the intent, they bypass the very mechanisms of public accountability that make reform sustainable. A judiciary that “saves the day” may feel right in the short term, but in the long run it erodes the rule of law by making process subordinate to outcome.
The Way Forward: The constitution must disallow ‘conditionally constitutional’ rulings
To restore constitutional clarity, only a constitutional amendment can impose meaningful limits. The amendment should explicitly prohibit conditional rulings and restrict the MK’s power to “negative” judicial review, limiting its powers to strike down provisions that violate the Constitution, but not reinterpret or rewrite them into something new. Such reform will not weaken the Court, instead it will reinforce its credibility and reestablish its rightful role as interpreter, not maker, of law.
It will also require the DPR and executive to take greater legislative responsibility, rather than outsourcing politically difficult decisions to the Court. The MK plays a vital role in protecting democracy and constitutional rights, but that role depends on restraint. When the MK oversteps and begins to legislate, it subverts the democratic contract and risks turning constitutionalism into quiet autocracy.
Ultimately, laws in a democracy should be shaped by those whom the public elects, not nine judges in robes. The problem is not the outcomes of the MK’s decisions, but the path it takes to reach them. In the words of US Supreme Court Justice Amy Coney Barrett, what Indonesia must avoid is an “imperial judiciary.”