Formal Review of Constitutional Court Decision: Annotation to the Constitutional Court Decision Number 145/PUU-XXI/2023

Abstract

This article discusses issue concerning formal review of Constitutional Court decision. This article comments the Constitutional Court Decision Number 145/PUU-XXI/2023. The Application requests the Constitutional Court to conduct formal review to Constitutional Court Decision Number 90/PUU-XXI/2023. This issue is very interesting. The Constitutional Court does not have authority over this case because such authority is not explicitly granted by the positive law which is the basis of the Constitutional Court’s jurisdiction. The Constitutional Court rejected the Applicants’ application on the grounds that Constitutional Court Decision was not legislation. This verdict is correct, but not interesting. On that basis, this article argues that this issue is about whether the Constitutional Court will use its judicial discretion or not to decide the case. This article proposes the thesis that although it can exercise judicial discretion, the Constitutional Court should not exercise that discretion.