Limitation of the Authority of the Supreme Court in Examining the Constitutional Court Regulation concerning the Election of Regional Heads

Abstract

The review by the Supreme Court/Mahkamah Agung (MA) of the Constitutional Court Regulation/Peraturan Mahkamah Konstitusi (PMK) concerning Regional Head Elections has the potential to make the dispute resolution process at the Constitutional Court without legal certainty considering that the Supreme Court may annul a PMK even though PMK is being used as a basis for conducting the judicial process. This research starts from three questions. Namely, how are the dynamics of the Supreme Court's authority in testing the laws and regulations; why is it necessary to limit or exclude the testing of PMK regarding Pilkada; and how is the design of PMK test exception by the MA. It is normative juridical research with a conceptual, legislation, and philosophical approach. The results of the study state that the Supreme Court is an institution that can conduct a judicial review of PMK even though PMK itself is not included in the hierarchy of laws and regulations in Indonesia, but to provide legal certainty, prevent conflicts of interest and overlapped decisions between judicial institutions, PMK regarding Pilkada must be excluded from the object of the material test by the Supreme Court. The design options that can be done are (i) time limitation; namely the limitation where the application for judicial review of PMK is limited by the time when it can and cannot be requested for a judicial review. (ii) PMK is equated with Government Regulation in Lieu of Law regarding its position and validity period. (iii). Testing on PMK uses a route other than judicial review.