Conditional Decisions as Instrument Guarding the Supremacy of the Constitution (Analysis of conditional decisions of Indonesian Constitutional Court in 2003 – 2017)

Muchamad Ali Safa'at, Aan Eko Widiarto


The function of the Indonesian Constitutional Court as the guardian of the constitution is mainly conducted through the judicial review authority. Since 2003 to April 2021, the Constitutional Court has received and decided 1392 petitions over judicial review. In its dictums, the Constitutional Court often declares conditionally constitutional or conditionally unconstitutional (conditional decision). Conditional decision is a decision of the Court that declare the reviewed norm conditionally constitutional or unconstitutional. The norm is constitutional if interpreted pursuant to the Court interpretation, or the norm is unconstitutional if interpreted in certain ways. This research is aimed to investigate the criteria of judicial review decisions which declares conditionally constitutional and conditionally unconstitutional in accordance with the characteristics of norms of the law reviewed. The analysis was limited to the Court decisions from 2003 to 2017. The research result indicates that distinguishing characters of norms reviewed have no correlation with the option between conditionally constitutional or conditionally unconstitutional.  Conditionally Constitutional Decision was used by the court before replaced by Conditionally Unconstitutional Decision due to the weakness of decision implementation. For conditionally unconstitutional decisions are connected to the substance of the decision which create new norm that replace, limit, or elaborate reviewed norm. Conditional decision is still required as a consequence of the following three aspects: enforcement of the supremacy of the constitution, presumption of validity, and strengthening the execution of Constitutional Court decisions.


constitutional court; conditionally constitutional; conditionally unconstitutional; supremacy of the constitution; additive decision; interpretative decision.


Asy’ari, Syukri, Meyrinda Rahmawaty Hilipito, dan Mohammad Mahrus Ali. Model dan Implementasi Putusan Mahkamah Konstitusi dalam Pengujian Undang-Undang (Studi Putusan Tahun 2003 – 2012). (Kepaniteraan dan Sekretariat Jenderal Mahkamah Konstitusi Republik Indonesia, 2013)

Bodenheimer, Edgar. Jurisprudence, The Philosophy and Method of the Law. (Cambridge University Press, 2011).

Brewer-Carias, Allan R. Constitutional Courts as Positive Legislators: A Comparative Law Study. (Cambridge University Press, 2011).

Campbell, Tom dan Jeffrey Goldsworthy (eds.). Judicial Power, Democracy and Legal Positivism. (Ashgate Dartmouth, 2000).

Choper, Jesse H. Judicial Review and the National Political Process, A Functional Reconsideration of the Role of the Supreme Court. (The University of Chicago Press, 1983).

Hart, H. L. A. The Concept of Law. Tenth impression. (Oxford University Press, 1979).

Kelsen, Hans. Pure Theory of Law. translation from the second (revised and enlarged). German edition. (University of California Press, 1976).

Murphy, Walter F., C. Herman Pritchett, Lee Epstein, dan Jack Knight. Court, Judges, & Politics, An Introduction to the Judicial Process. (Mc Graw Hill, 2006)

Rahardjo, Satjipto. Ilmu Hukum. (Citra Aditya Bakti, 2006).

Rahman, Faiz dan Dian Agung Wicaksono. “Eksistensi dan Karakteristik Putusan Bersyarat Mahkamah Konstitusi” (2013) Jurnal Konstitusi, Vol 13 No. 2.

Wignjosoebroto, Soetandyo. Hukum: Paradigma, Metode dan Dinamika Masalahnya. (Huma, 2000).

Wolfe, Christopher. The Rise of Modern Judicial Review, From Constitutional Interpretation to Judge-Made Law. (Basic Books, Inc., 1986).


  • There are currently no refbacks.

Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.