Legal Literacy - This article discusses whether the constitutional review model of foreign countries needs to be adopted by the Constitutional Court of the Republic of Indonesia. Through in-depth analysis of the doctrine of constitutionalism and constitutional review, as well as comparing the constitutional review mechanisms implemented in Germany and France, this article examines the potential and challenges of implementing similar models in Indonesia. With a juridical and normative approach, the author examines the implications of adopting a foreign constitutional review model on efforts to enforce the constitution and protect the rights of citizens in Indonesia.

The Doctrine of Constitutionalism and Constitutional Review

“The principle of constitutionalism rest on this idea of restraining the government in its exercise of power. Constitutionalism therefore, is to be set in contradiction to arbitrary power.”

The string of words above is one of playlist legal doctrines that influence constitutionalism in the world, namely the doctrines of Michael Allon and Brian Thompson.[1] The essence of this understanding is the demand for divided power or the division of government power based on the constitution so that the power is not misused. This understanding spread to countries around the world, in casu countries that adhere to legal sovereignty, thus giving rise to internal demands for a country to run a mechanism to maintain and oversee the constitution. In addition, this aims to ensure that all forms of irregularities in the use of an authority can be rehabilitated, returning to their functions and positions as regulated in the constitution.

The constitution as a construction of a social agreement or social contract becomes a forum for the rights of citizens to be guaranteed, protected and respected. The scale of urgency that arises from this constitution is enforced in a country as a guideline or a reference in running the wheels of the state. What needs to be underlined is the guarantee of the enforcement of the constitution. Without a guarantee for the upholding and running of the constitution, the rights of citizens will be at stake because the constitution only functions as a frozen and silent text.

The mechanism available in maintaining and overseeing the constitution is constitutional review or constitutional review legislation against the constitution or UUD. The placement of the constitutional test stone of a legislation on this constitution is based on the Norm Hierarchy Theory initiated by Hans Kelsen and Hans Nawiasky. The constitution as grundnorm or basic norm is placed at the top as a reference for legislation below it. In practice in the judicial field throughout the world, there are various types and models of constitutional review applied by a country.