Adjudicating Certainty: Paradigms of Finality and Fallibility in the Decisions of Indonesia’s Constitutional Court

Adjudicating Certainty: Paradigms of Finality and Fallibility in the Decisions of Indonesia’s Constitutional Court

Bakti Siahaan, Saleh Sjafei, Arfan Tarigan

Faculty of Law, Syiah Kuala University, Indonesia

DOI: https://dx.doi.org/10.47772/IJRISS.2025.90600001

Received: 13 June 2025; Accepted: 16 June 2025; Published: 26 June 2025

ABSTRACT

The Indonesian Constitutional Court (Mahkamah Konstitusi – MK) occupies a pivotal role as the authoritative interpreter of the Constitution, wielding power through decisions declared final and binding. This inherent finality, essential for legal certainty and constitutional supremacy, exists in perpetual tension with the undeniable reality of judicial fallibility. Utilizing normative, philosophical, and comparative legal methodologies, this article contrasts the traditional formalist-positivist paradigm with contemporary legal realist, critical, and institutionalist perspectives to analyze this fundamental tension. It argues that while absolute finality is a constitutional necessity, a failure to acknowledge and institutionally manage fallibility poses significant risks to the Court’s legitimacy and democratic function. Drawing on specific Indonesian cases, legal theory, and comparative examples, the article concludes that embracing mechanisms addressing fallibility is crucial for strengthening, rather than undermining, the essential finality of the MK and its enduring role in Indonesian democracy.

Keyword: Finality, Fallibility, Legal Certainty, Legal Paradigms, Constitutional Court

INTRODUCTION AND BACKGROUND

Established by the Third Amendment to the 1945 Constitution in 2001 and formally operationalized in 2003 through Law No. 24 of 2003 on the Constitutional Court (as amended), the Indonesian Constitutional Court emerged as a cornerstone of the nation’s post-authoritarian democratic transition.¹ It holds exclusive jurisdiction over critical constitutional matters: judicial review of statutes against the 1945 Constitution, resolving disputes over the authority of state institutions, deciding on the dissolution of political parties, adjudicating disputes over the results of general elections (presidential, legislative, regional), and providing an opinion on the impeachment of the President and/or Vice-President by the People’s Consultative Assembly (MPR).² Crucially, Article 24C Paragraph (1) of the 1945 Constitution explicitly mandates that “Constitutional Court decisions are final.”³ This constitutional edict of finality serves indispensable purposes: it provides definitive closure to constitutional controversies, upholding legal certainty (rechtszekerheid); it reinforces the supremacy of the Constitution (staatsfundamentalnorm) by establishing a single, ultimate interpreter; it prevents governmental paralysis by conclusively settling institutional conflicts; and it ensures the stability of the democratic process, particularly by resolving contentious election outcomes, thereby facilitating peaceful transitions.⁴

However, this constitutional principle of finality inherently clashes with the inescapable reality of judicial fallibility. MK justices, like all human actors within legal systems, are susceptible to cognitive limitations, interpretive biases, potential external pressures (political, social, economic), ethical failings, or incomplete understanding of complex societal ramifications.⁵ Indonesia’s own experience provides stark illustrations. Controversial rulings on election disputes, such as the handling of the 2019 Presidential Election results or various regional election (Pilkada) disputes, have often been intensely debated.⁶ Varying interpretations of key constitutional concepts, like the definition of “state financial losses” (kerugian keuangan negara) in corruption cases reviewed by the MK, demonstrate the interpretive space where fallibility can manifest.⁷ Most damagingly, high-profile judicial ethics scandals involving former Chief Justices – notably Akil Mochtar (impeached and imprisoned for bribery in 2013) and Patrialis Akbar (dismissed for ethics violations in 2017) – serve as potent reminders that the institution itself is not immune to profound ethical failure.⁸ These instances demonstrate that MK decisions are not infallible pronouncements. They can be, and have been, perceived as erroneous, unjust, or poorly reasoned, raising profound questions about reconciling the necessity of finality with the possibility of error.

Methodological Approach

This article employs a multifaceted methodological framework to dissect the tension between finality and fallibility. Normative legal analysis forms the foundation, examining the relevant positive law: primarily the 1945 Constitution (especially Article 24C), Law No. 24/2003 on the Constitutional Court (as amended by Law No. 8/2011 and Law No. 7/2020), and the MK’s Procedural Rules (Peraturan MK).⁹ This analysis focuses on the de jure establishment of the Court’s authority and the principle of finality, exploring the intended function and theoretical justification of these norms within the constitutional order as designed by the framers.¹⁰

Philosophical inquiry delves deeper into the theoretical underpinnings of judicial authority, constitutional interpretation, and legitimacy. It grapples with fundamental questions pertinent to the MK’s position: Can any human institution vested with such ultimate power legitimately claim infallibility? How do different legal philosophies conceptualize judicial error and the source of a decision’s binding authority?¹¹ Legal positivism (e.g., Hans Kelsen, H.L.A. Hart), emphasizing law as a system of valid norms emanating from a sovereign source, offers one perspective on finality. Natural law theories, suggesting a higher moral standard against which positive law (and judicial decisions) can be judged, provide another lens for assessing potential error. Critical theories fundamentally question the neutrality and objectivity claimed by courts.¹²

Crucially, comparative legal studies, focused on shifting legal paradigms, provides the analytical lens for contrasting understandings of judicial decision-making. The analysis juxtaposes the traditional formalist-positivist paradigm with contemporary paradigms. The old paradigm, rooted in thinkers like Hans Kelsen and the formalist tradition, views law as a hierarchical, gapless logical system.¹³ Judges are seen as neutral oracles discovering and applying pre-existing, clear legal rules, often through strict textualism or originalism. Within this view, exemplified in Kelsen’s concept of the Grundnorm (basic norm), finality derives from the court’s position at the apex of the legal order; its decision is the final act of law creation within the system.¹⁴ Fallibility is minimized; a decision’s correctness is largely defined by its finality and adherence to procedural form, and legitimacy stems primarily from the court’s institutional authority derived from the constitution. ¹⁵

In contrast, contemporary perspectives offer a more complex and critical view. Legal Realism (e.g., Oliver Wendell Holmes Jr., Karl Llewellyn, Jerome Frank) recognizes law’s inherent indeterminacy, acknowledging that judges are influenced by subjective factors (“hunches”), policy considerations, and the social context.¹⁶ Fallibility is inherent and expected due to the open texture of law and human nature; finality is a pragmatic necessity for social order, not proof of objective truth. Critical Legal Studies (CLS) and related critical theories (e.g., Critical Race Theory, Feminist Legal Theory) view law and adjudication as inherently political, reflecting and reinforcing societal power structures and dominant ideologies.¹⁷ Judicial decisions mask subjective choices and biases; finality can thus entrench existing inequalities and injustices, making legitimacy perpetually contested based on outcomes and power dynamics. Institutionalism and Neo-Institutionalism (e.g., Tom Ginsburg, Mark Tushnet, James G. March, Johan P. Olsen) shift focus to the court as an actor embedded within a broader political and social system.¹⁸ Legitimacy is seen as contingent and dynamic, relying on the court’s performance, perceived independence, accountability mechanisms, and, crucially, public trust. While finality is a core institutional feature defining the constitutional court’s role, managing the perception and reality of fallibility through institutional design (e.g., dissent publication, ethical codes, appointment processes) becomes paramount for long-term legitimacy, stability, and effectiveness.¹⁹

DISCUSSION

Paradigms Illuminating the Tension

Viewing the MK’s finality through the traditional formalist-positivist lens provides a seemingly clear and objective justification, deeply embedded in the Indonesian constitutional text and structure. The Court’s decision is presented as the authoritative, almost mechanical, voice of the Constitution itself.²⁰ Fallibility is treated as an anomaly, theoretically mitigated by rigorous judicial selection criteria (Article 24C (5) 1945 Constitution, Article 4 Law 24/2003) and adherence to formal legal reasoning. ²¹ This perspective underpins the strict legal doctrine supporting the MK’s unchallengeable authority and resonates with a desire for legal certainty. However, this paradigm struggles significantly when confronted with Indonesia’s reality: controversial decisions like the MK’s intervention in defining election thresholds or validating certain candidacies, the aforementioned ethics scandals, or rulings later widely regarded as socially harmful or legally flawed (e.g., certain interpretations limiting anti-corruption efforts).²² It risks portraying the MK as an infallible oracle, detached from the human element and socio-political context inherent in constitutional judgment, and fails to provide adequate conceptual tools or institutional responses when finality appears to conflict with substantive justice or sound reasoning.

The contemporary paradigms confront these uncomfortable complexities head-on. Legal Realism compels the acknowledgment that MK justices interpret the broad, often abstract principles of the Constitution through their individual lenses. Decisions concerning electoral systems (e.g., the constitutionality of parliamentary thresholds), socio-economic rights (e.g., health or education funding), or the boundaries of state ideology (Pancasila) inevitably involve significant policy choices and value judgments, presented as constitutional deduction but shaped by contemporary values, political currents, and personal judicial philosophies.²³ Within this view, fallibility is systemic and expected, an inherent consequence of human judgment grappling with complex, ambiguous text in a dynamic society. Finality remains a practical imperative for the functioning of the legal system but cannot erase the persistent possibility of error or the influence of non-legal factors.²⁴ Critical Perspectives push the analysis further, highlighting how the MK’s final decisions can sometimes reflect or reinforce power imbalances. Allegations that certain election dispute rulings unduly favoured powerful political actors or incumbents, or that interpretations of indigenous rights or religious freedom issues marginalized vulnerable groups, challenge the Court’s neutrality from this viewpoint. ²⁵ The finality of a decision perceived as deeply unjust or biased directly and powerfully erodes the Court’s legitimacy for critical theorists. Fallibility here extends beyond individual missteps to encompass potential systemic biases embedded within the legal, political, and social structures that the Court operates within and interprets.²⁶

Institutionalism provides a crucial pragmatic framework for understanding the MK’s position within Indonesian democracy. It emphasizes that the Court’s long-term effectiveness and the societal acceptance of its final decisions depend critically on its perceived legitimacy – a reservoir of trust that can be depleted.²⁷ Unacknowledged fallibility, especially when manifested in high-profile cases involving ethical lapses (like the Akil Mochtar case) or acute political sensitivity (like highly contested presidential election verdicts), poses a severe threat, eroding public trust and depleting the Court’s institutional capital necessary for its rulings to be respected.²⁸ Comparative insights reveal that constitutional courts globally grapple with this same tension. The German Federal Constitutional Court (Bundesverfassungsgericht) publishes powerful dissenting opinions, acknowledging internal disagreement.²⁹ The South African Constitutional Court actively engages with public reason and transformative constitutionalism, sensitive to its role in a transitioning society.³⁰ Some systems allow for legislative overrides (e.g., Canada’s ‘notwithstanding clause’ under Section 33 of the Charter, used sparingly) or require constitutional amendments to correct perceived profound judicial errors, demonstrating that absolute, unassailable finality is a theoretical ideal rarely realized in practice.³¹ These mechanisms represent institutional adaptations acknowledging fallibility while preserving core judicial authority and the principle of finality for most cases.

The Indonesian context uniquely amplifies this tension. The MK operates within a vibrant, complex, and often contentious democracy undergoing continuous consolidation. Its rulings, particularly on election results, possess immediate and profound political consequences, directly shaping the nation’s leadership and legislative composition, often amidst intense polarization.³² The constitutional bar on any formal appeal or review mechanism for MK decisions (Article 24C(1) 1945 Constitution, Article 10(2) Law 24/2003), combined with documented instances of ethical lapses and rulings generating significant controversy and public dissent, renders the conflict between necessary finality and undeniable fallibility exceptionally acute.³³ Public trust, the bedrock upon which the MK’s legitimacy and the effectiveness of its final pronouncements rest, is inherently vulnerable when fallibility becomes glaringly apparent without visible institutional acknowledgment or credible avenues for constructive response beyond political pressure or public protest. The Court’s legitimacy crisis following the Akil Mochtar scandal starkly illustrates this vulnerability.³⁴

CONCLUSION AND RECOMMENDATIONS:

Fortifying Finality Through Managed Fallibility

The finality of Indonesia’s Constitutional Court decisions, enshrined in Article 24C of the 1945 Constitution, remains an indispensable constitutional principle. It is foundational to legal certainty (rechtszekerheid), state stability, and upholding the supremacy of the Constitution (staatsfundamentalnorm).³⁵ However, adherence to a rigid formalist-positivist paradigm that ignores or minimizes the reality of judicial fallibility is empirically unsustainable, as demonstrated by Indonesia’s own history, and normatively hazardous. Such a stance risks isolating the Court from necessary scrutiny, fostering public cynicism, and significantly undermining its legitimacy when errors, perceived injustices, or ethical breaches inevitably surface.³⁶

Acknowledging the potential for fallibility is not an admission of institutional weakness but a hallmark of institutional maturity and a deeper commitment to the substance of constitutional justice. Drawing insights from legal realism, critical perspectives, and institutionalism, Indonesia can strengthen the MK’s authority by implementing mechanisms that proactively address fallibility without compromising the essential finality of its rulings.

Institutionalize Robust Dissenting Opinions: The MK should mandate and publish detailed dissenting opinions as a standard practice.³⁷ Dissents serve vital functions: they provide alternative constitutional interpretations, signal potential flaws in the majority’s reasoning to the legal community, the public, and future benches, demonstrate the depth of internal deliberation, and enhance transparency and intellectual accountability. This practice is well-established in respected constitutional courts globally (e.g., Germany, USA, South Africa) and strengthens rather than weakens the perceived legitimacy of the final decision by showcasing rigorous debate.³⁸

Enhance Reasoning and Transparency: MK decisions must consistently provide exceptionally clear, thorough, and accessible reasoning.³⁹ Opinions should explicitly address complex arguments, engage with counter-arguments presented by litigants and amicus curiae, and articulate the underlying values or policy considerations where relevant, making the judicial thought process transparent.⁴⁰ This demonstrates careful consideration and allows for more informed public and scholarly evaluation, even if disagreement persists.

Strengthen Ethical Safeguards and Enforcement: Implementing a stricter, more transparent Code of Judicial Conduct specifically for MK justices, going beyond the general provisions for judges, is essential.⁴¹ Crucially, this must be coupled with a genuinely independent and empowered ethics council (potentially reforming the existing Honorary Council of the Constitutional Court/MKHD). This council must possess credible investigative powers, clear procedures, transparency in its workings, and the authority to impose meaningful sanctions, including recommendations for dismissal to the President and DPR.⁴² Public trust is catastrophically damaged by ethical scandals; robust, visible enforcement is non-negotiable for managing perceptions of fallibility linked to corruption.

Foster a Culture of Constructive Critique and Engagement: The MK should actively encourage and engage with reasoned scholarly criticism and informed public discourse regarding its decisions.⁴³ While its legal judgments remain final, open intellectual dialogue acknowledges the interpretative nature of constitutional law and provides a crucial channel for addressing concerns about judicial reasoning or societal impact. The Court could facilitate this through public lectures, seminars discussing landmark rulings, or even publishing responses to significant academic critiques.⁴⁴

Strengthen Judicial Appointment and Education: The judicial appointment process (involving the President, DPR, and Supreme Court) must rigorously prioritize not only profound legal expertise but also demonstrable integrity, independence of mind, and a deep understanding of Indonesia’s unique socio-legal fabric and constitutional history.⁴⁵ Continuous judicial education programs for sitting justices should be intensified, emphasizing ethical conduct, critical reasoning skills, awareness of cognitive biases, comparative constitutional law, and the socio-political impact of constitutional adjudication.⁴⁶

Finality remains the bedrock upon which the Constitutional Court’s vital function rests. However, by openly acknowledging the human dimension of judgment and constructively managing the potential for fallibility through enhanced transparency, rigorous accountability, unwavering ethical standards, and meaningful engagement, the Indonesian Constitutional Court can transform a source of tension into a foundation for enduring strength. This approach fosters greater public trust, reinforces the deep legitimacy that underpins its final decisions, and ultimately secures its indispensable role as the guardian of the Indonesian Constitution within a dynamic and evolving democratic order. The objective is not to diminish the Court’s authority but to ensure that this authority rests upon a realistic foundation of human judgment, steadfastly committed to justice, constitutional ideals, and accountable to the democratic society it serves.

REFERENCES AND FOOTNOTES

1. Jimly Asshiddiqie, The Constitutional Law of Indonesia: A Comprehensive Overview (Sweet & Maxwell Asia, 2009), pp. 245–260, 265–280.
2. Article 24C(1) and (2), The 1945 Constitution of the Republic of Indonesia; Article 10(1), Law No. 24 of 2003 on the Constitutional Court (as amended).
3. Article 24C(1), The 1945 Constitution of the Republic of Indonesia.
4. Saldi Isra, Perkembangan Fungsi dan Kelembagaan Mahkamah Konstitusi di Berbagai Negara (Pusat Studi Hukum Tata Negara FHUI, 2006), p. 15.
5. Denny Indrayana, Indonesian Constitutional Reform 1999–2002: An Evaluation of Constitution-Making in Transition (Kompas Book Publishing, 2008), p. 342.
6. Jerome Frank, Law and the Modern Mind (Transaction Publishers, 1930/2009), pp. 100–120.
7. Karl N. Llewellyn, The Bramble Bush: On Our Law and Its Study (Oceana Publications, 1930/2008), pp. 65–80.
8. Bivitri Susanti, “The Indonesian Constitutional Court and Informal Constitutional Change,” in The Constitutional Court of Indonesia: Law, Politics and Practice, ed. Simon Butt & Tim Lindsey (ASEAN Law Association, 2018), pp. 45–65.
9. Marcus Mietzner, “Fighting the Hellhounds: Polarisation and Democratic Decline in Indonesia,” Journal of Current Southeast Asian Affairs 39, no. 3 (2020): 386–408.
10. Constitutional Court Decisions No. 003/PUU-IV/2006 and No. 25/PUU-XIV/2016.
11. Simon Butt, “Judicial Review in Indonesia: Between Civil Law and Accountability? A Study of Constitutional Court Decisions 2003–2005” (PhD diss., Melbourne Law School, 2007), pp. 180–210.
12. “Akil Mochtar Divonis Seumur Hidup,” Kompas, 5 October 2014.
13. “Patrialis Akbar Resmi Diberhentikan Sebagai Hakim Konstitusi,” Hukumonline, 27 January 2017.
14. Undang-Undang Dasar Negara Republik Indonesia Tahun 1945; Undang-Undang Republik Indonesia Nomor 24 Tahun 2003 tentang Mahkamah Konstitusi (beserta perubahan); Peraturan Mahkamah Konstitusi.
15. Ni’matul Huda, Hukum Tata Negara Indonesia (Rajawali Pers, 2010), pp. 189–205.
16. L.A. Hart, The Concept of Law (Oxford University Press, 1961), pp. 102–107, 138–144.
17. Ronald Dworkin, Law’s Empire (Harvard University Press, 1986), pp. 65–68, 313–354.
18. Duncan Kennedy, A Critique of Adjudication (fin de siècle) (Harvard University Press, 1997), pp. 1–30, 105–130.
19. Catharine A. MacKinnon, Toward a Feminist Theory of the State (Harvard University Press, 1989), pp. 157–170.
20. Hans Kelsen, Pure Theory of Law (University of California Press, 1967), pp. 193–220, 348–354.
21. Christopher Columbus Langdell, “Harvard Celebration Speeches,” Law Quarterly Review 3 (1887): 123.
22. Oliver Wendell Holmes, “The Path of the Law,” Harvard Law Review 10 (1897): 457.
23. Roberto Mangabeira Unger, The Critical Legal Studies Movement (Harvard University Press, 1986).
24. Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge University Press, 2003), pp. 8–35, 219–250.
25. Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton University Press, 2008), pp. 20–45.
26. James L. Gibson, Gregory A. Caldeira, and Lester Kenyatta Spence, “Measuring Attitudes Toward the United States Supreme Court,” American Journal of Political Science 47, no. 2 (2003): 354–367.
27. Asshiddiqie, Konstitusi & Konstitusionalisme Indonesia (Sekretariat Jenderal dan Kepaniteraan MKRI, 2005), p. 83.
28. Article 4, Law No. 24/2003 (on requirements: integrity, personality, fairness, legal expertise, constitutional knowledge).
29. Decision of the Constitutional Court No. 90/PUU-XXI/2023; Decision No. 102/PUU-VII/2009.
30. Fritz Edward Siregar, “Legal Realism and Constitutional Interpretation in Indonesia,” Indonesia Law Review 7, no. 1 (2017): 1–20.
31. Llewellyn, The Common Law Tradition: Deciding Appeals (Little, Brown and Co., 1960), pp. 19–61.
32. Edward Aspinall and Marcus Mietzner, “Indonesian Democracy: From Stagnation to Regression?,” Journal of Democracy 33, no. 2 (2022): 158–172.
33. Bivitri Susanti, “The Politics of Human Rights in the Constitutional Court of Indonesia,” Pacific Rim Law & Policy Journal 27, no. 1 (2018): 1–34.
34. Indonesian legal journals like Journal Konstitusi or Journal Mahkamah Konstitusi (for critiques of MK decisions).
35. David Easton, A Systems Analysis of Political Life (John Wiley & Sons, 1965), pp. 273–287.
36. Sebastian Pompe, The Indonesian Supreme Court: A Study of Institutional Collapse (Southeast Asia Program Publications, Cornell University, 2005), pp. 1–10.
37. “Survei: Tingkat Kepercayaan Publik ke MK Menurun,” CNN Indonesia, 14 October 2013.
38. Donald P. Kommers and Russell A. Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press, 3rd ed., 2012), pp. 45–48.
39. Theunis Roux, The Politics of Principle: The First South African Constitutional Court, 1995–2005 (Cambridge University Press, 2013), pp. 25–60, 312–350.
40. Peter W. Hogg and Allison A. Bushell, “The Charter Dialogue Between Courts and Legislatures,” Osgoode Hall Law Journal 35 (1997): 75.
41. Marcus Mietzner, Money, Power, and Ideology: Political Parties in Post-Authoritarian Indonesia (NUS Press, 2013), pp. 260–290.
42. Article 24C(1) 1945 Constitution; Article 10(2) Law 24/2003.
43. “MK Dinilai Krisis Legitimasi,” Tempo.co, 9 October 2013.
44. Dissenting opinions in MK Decision No. 14–17/PUU-V/2007 (Judicial Review of the Broadcasting Law).
45. Article 57 Law 24/2003 (on requirement of reasoning in decisions); See Butt & Lindsey, eds., The Constitutional Court of Indonesia.
46. The existing Code of Ethics for Constitutional Justices (Kode Etik Hakim Konstitusi), MK Regulation No. 02/PMK/2004; Bangalore Principles of Judicial Conduct (2002).
47. “Reformasi Mahkamah Konstitusi: Evaluasi dan Agenda” (Komisi Yudisial, 2019).
48. German Bundesverfassungsgericht press releases (for comparative practice).
49. Articles 24C(5) 1945 Constitution and Article 4 Law 24/2003.
50. Sebastian Pompe, “Judicial Reforms in Indonesia: Transparency, Accountability and Fighting Corruption,” U4 Brief 2011:5 (Chr. Michelsen Institute).
51. Structured education for constitutional justices needs enhancement beyond formal legal updates.