Here are some examples of cases that apply open legal policy in their decisions in Indonesia:

  • The Constitutional Court often uses the concept of open legal policy when considering judicial review of the Election Law. The reason is that the constitution does not explicitly regulate which election system should be used (open proportional, closed, or other). This is considered the authority of the lawmakers to decide.
  • Example: The latest lawsuit against the open proportional system in Law No. 7 of 2017. The Constitutional Court considered open legal policy because the choice of election system is an open policy domain for lawmakers.

2. Regulation of the Presidential Nomination Threshold (Presidential Threshold)

  • The Constitutional Court rejected a lawsuit related to the presidential threshold arrangement using the open legal policy argument. Restrictions on candidature, although not explicit in the 1945 Constitution, can be applied by lawmakers for purposes such as government efficiency and political stability.

3. Term of Office of Constitutional Justices

  • The Constitutional Court once used the logic of open legal policy in a decision that affirmed the absence of restrictions on the term of office of constitutional justices in the constitution. Therefore, lawmakers have the discretion to determine this term of office.

4. Wage Regulations

  • In a dispute regarding the minimum wage formula, the Constitutional Court was of the view that the 1945 Constitution does not detail how it is calculated. Determining the wage formula is an open policy space for lawmakers.

Important Note

Although in these examples the Constitutional Court validates the norms born from open legal policy, it is important to remember that this authority is NOT absolute. The Constitutional Court can still annul laws (including products of open legal policy) if their content violates basic constitutional values or human rights principles.

The arrangement of open legal policy in other countries has different variations and terminology, but generally refers to a similar concept: the authority of lawmakers to fill legal loopholes in the constitution. Here are some examples:

1. United States

  • In the US, the concept of open legal policy is known as "legislative discretion" or "judicial deference".
  • The US Supreme Court provides space for the legislature to interpret the constitution within reasonable limits, and judges generally respect that interpretation.
  • Example: regulations regarding abortion rights, where the US Supreme Court decided that the constitution does not explicitly prohibit abortion, thus giving the legislature the authority to regulate the issue.

2. Germany

  • In Germany, the concept of open legal policy is known as "freie Rechtsfindung" or "judicial legislation".
  • Judges in Germany have broader authority in interpreting the law, including filling legal loopholes.
  • Example: regulations regarding euthanasia rights, where the German Constitutional Court decided that the constitution protects the individual's right to end their life with dignity, thus opening up space for the legislature to formulate related regulations.

3. South Africa

  • In South Africa, the concept of open legal policy is known as "transformative constitutionalism".
  • The South African Constitution explicitly encourages social and political transformation, and judges have the authority to interpret the law based on these principles.
  • Example: regulations regarding land rights, where the South African Constitutional Court decided that the constitution requires land redistribution to address the legacy of apartheid, thus opening up space for the legislature to formulate related regulations.

4. Similarities and Differences

Reference Source

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