Abstract:
The establishment of the Indonesian Constitutional Court in 2003 signified
the formation of a bridge between the judiciary and politics. Through its judicial
review process, there is a more tangible presence of the judiciary and court in
the political arena. The Court helps with addressing moral predicaments and
influencing the products of the legislature. This paper discusses the shifting of
the legal-politico paradigm, particularly relating to judicial leadership of the
Court because this significantly affects the role of the Court in the political
arena. The history of the establishment of the Court’s authority in judicial
review is explored through a stylised analysis of the actions of two early Chief
Justices. This paper also examines two Court decisions which illustrated the
Court’s authority on judicial review because they demonstrated the importance
of policy-driven decisions and judicial restraint. The main argument of this
work is that it is hard to categorize the legal-politico actions of the Indonesian
Court into either legalism or instrumentalism. Often, the Court synthesises the
two. The legal-politico paradigm is a dynamic one. The most feasible model
of the Indonesian Constitutional Court is that of a Principled Instrumentalist
Court, where policy decisions guide the formation of legislation according to
constitutional values, but the judges maintain prudential self-restraint.
Keywords: Constitutional Court, Instrumentalism, Judicial Restraint, Judicial
Review, Legalism.
