Legal Literacy - This article discusses formal judicial review in Indonesia.

Formal Judicial Review in Indonesia

The judicial review of laws is divided into two types: material judicial review and formal judicial review. Harun Al Rasid stated that the right to formal review concerns the procedure for making laws.[1]

Meanwhile, according to Jimly Asshiddiqie, in general, what can be referred to as formal judicial review (formeele toetsing) not only includes the process of forming laws in a narrow sense, but also includes reviewing aspects of the form of the law and its enactment.[2]

Jimly provides criteria that can be used to assess the constitutionality of a law from a formal perspective, which is the extent to which the law is established in the appropriate form (appopriate form), by the appropriate institution (appopriate institution), and according to the appropriate procedure (appopriate procedure).[3]

Furthermore, according to Sri Soemantri, the right to formal review is the authority to assess whether a legislative product, such as a law, is realized through the methods (procedure) as stipulated/regulated in the prevailing laws and regulations or not.[4]

Based on the above definitions, it can be formulated that formal judicial review must at least include the following:[5]

  1. Review of the implementation of the procedures for the formation of laws, both in discussions and in making decisions on the draft of a law into a law;
  2. Review of the form, format, or structure of the law;
  3. Review related to the authority of the institution making decisions in the process of forming laws;
  4. Review of other matters not included in the material judicial review.

Based on the four scopes above, it can be seen that the formal judicial review of laws will always be related to the procedure and form of law formation. Formal judicial review is not related to the material content of the law, whether it contradicts constitutional rights as guaranteed in the 1945 Constitution or not, but whether the procedure is in accordance with the 1945 Constitution or not.

Jimly stated that basically, the procedures for the formation of laws are regulated in the 1945 Constitution.[6]However, more detailed rules are regulated in the Law on the Establishment of Legislation. Thus, the material regulated in the law on the Establishment of Legislation also must be seen as an inseparable part of constitutional law.[7] 

Suzie Navot, in her writing titled Judicial Review of the Legislative Process mentions the term formal review with the term judicial review of legislative process which is a form of constitutional review conducted by the court to determine the validity of a law based on an examination of its formation procedure.[8]  This means that a law can be declared procedurally flawed because it was passed without following the proper procedure. Thus, the main argument built in the formal review is the review of the formation process rather than the material substance of the law. [9]