Non-litigious Litigation: Strengthening the Rule of Law through Judicial Review

Indonesia’s legal landscape is dynamic yet entangled. Beneath the surface of abundant legislation lies a persistent structural problem: overlapping, inconsistent, and linguistically obscure regulations. The consequence is uncertainty—where even public officials struggle to determine which rule governs and how it should be applied. 

As a practitioner in constitutional and administrative law, I have seen that one of the most effective ways to untangle this web is through judicial review—a form of non-litigious litigation. Judicial review before the Constitutional Court (Mahkamah Konstitusi) and the Supreme Court (Mahkamah Agung) allows the judiciary to restore order to Indonesia’s legal hierarchy without waiting for political compromise or the slow legislative process. Looking ahead, the system can be strengthened by improving transparency in the Supreme Court’s judicial review and introducing a constitutional-complaint mechanism at the Constitutional Court—creating a more balanced and responsive architecture of constitutional justice. 

Overlapping and Obscure Regulations 

Indonesia’s hierarchy of norms—from the 1945 Constitution to regional regulations—continues to produce 3 recurring forms of disorder: horizontal overlap, vertical inconsistency, and linguistic obscurity. 

1. Horizontal Overlap 

Conflicts often emerge between regulations of equal rank enacted by different sectors. A clear example appears between Law No. 12 of 2012 on Higher Education and Law No. 17 of 2023 on Health. Article 24 paragraph (2) jo. Article 1 point 2 of the Higher Education Law limits the organizer of professional programs—including medical-specialist education—to colleges (perguruan tinggi). In contrast, Article 187 paragraph (3) of the Health Law introduces hospitals, in cooperation with colleges, as organizers. This expansion generates uncertainty over the division of roles, accreditation, and supervision between universities and teaching hospitals. 

A similar overlap exists in defining “state finance (keuangan negara)”. Law No. 17 of 2003 on State Finance adopts an expansive concept covering assets of state-owned enterprises (SOEs), while Law No. 19 of 2003 on SOEs defines them as independent legal entities with separate assets. This tension has led to conflicting interpretations in corruption cases and audits, where the line between public and corporate assets remains contested. Together, these examples show how horizontal inconsistencies at the statutory level weaken legal certainty and blur institutional accountability. 

2. Vertical Inconsistency 

Vertical inconsistency arises when subordinate regulations deviate from their parent statutes. The Committee of State Receivables Management (PUPN), established under Government Regulation in lieu of Law No. 49 of 1960 on PUPN, saw its powers significantly expanded by Government Regulation No. 28 of 2022 on Management of State Receivables by PUPN, introducing enforcement mechanisms not contemplated in the 1960 framework. This raises ultra vires concerns and blurs the boundaries of lawful delegation. 

A further example appears in the regularization of forest areas (penertiban kawasan hutan). Articles 110A and 110B of Law No. 18 of 2013 on the Prevention and Eradication of Forest Destruction, as amended by Government Regulation in lieu of Law No. 2 of 2022 on Job Creation, establish mechanisms for administrative settlement of past land-use violations within forest zones. Yet Presidential Regulation No. 5 of 2025 on Forest Area Regularization goes further by introducing a new sanction—repossession (penguasaan kembali)—not envisaged by the parent law. This illustrates how lower level regulation can quietly expand state authority and alter the balance of rights and obligations originally set by laws. 

3. Linguistic Obscurity 

Even when hierarchy is respected, ambiguity in legislative language can still derail justice. A striking example is Article 14 of Law No. 31 of 1999 on the Eradication of Corruption Crime, as amended by Law No. 20 of 2001 (Anti-Corruption Law), which enables an expansive application of corruption offences beyond those originally defined. The provision’s vague syntax and circular logic have long caused confusion. In Circular Letter No. 7 of 2012, the Supreme Court acknowledged two competing interpretations and noted plans for internal revision. Yet the article remains unrevised, continuing to blur the boundary between general and sectoral criminal liability. 

I am currently contesting Article 14 before the Constitutional Court, seeking a definitive interpretation that restores the principle of legality and prevents indiscriminate extension of criminal liability. This uncertainty exemplifies how linguistic obscurity in legislative drafting can distort the reach of criminal law, threaten individual rights, and erode the credibility of anti-corruption enforcement. 

Judicial Review as Non-litigious Litigation 

Against this backdrop, judicial review functions as a disciplined, non-adversarial mechanism to correct defective norms. Petitioners do not seek compensation but legal coherence. 

1. At the Constitutional Court 

The Constitutional Court reviews laws (undang-undang) against the 1945 Constitution. It may annul, reinterpret, or conditionally uphold provisions. Through these powers, it acts as the guardian of constitutional supremacy, offering a rapid remedy to systemic uncertainty. 

A significant example is the judicial review of online-defamation and hate-speech provisions in the Electronic Information and Transactions Law, a case I had the privilege to lead. The Court narrowed the scope of those offences, emphasizing freedom of expression and proportionality in sanctions. This decision not only aligned Indonesia’s cyber-law enforcement with constitutional guarantees but also showed how judicial review refines legislative language to prevent misuse. 

Another landmark is Decision No. 62/PUU-XXII/2024, which eliminated the presidential threshold that had long restricted nominations for president and vice president to parties or coalitions commanding 20% of parliamentary seats or 25% of the vote. By striking down this limitation, the Court reaffirmed equal political participation and expanded democratic space for both voters and parties. The case illustrates judicial review’s role as a non-litigious instrument of structural reform, reshaping Indonesia’s political framework through legal reasoning rather than political bargaining. 

2. At the Supreme Court 

The Supreme Court reviews regulations below the law—government, ministerial, and regional—against higher-level regulations. Many regulatory conflicts occur here, where agencies exceed delegated authority. The Court’s annulments restore legal hierarchy and coherence. 

An illustrative case is the judicial review of the Minister of Industry’s Regulation on the Tobacco Production Roadmap 2015–2020, which I structured on behalf of public-health advocates. The regulation drastically increased production limits, reflecting regulatory capture by commercial interests. The Supreme Court granted the petition, annulling the regulation and affirming that industrial policy cannot override public health. The ruling reframed tobacco not merely as an economic commodity but as a constitutional concern, showing how judicial review can curb executive excess and safeguard public welfare. 

Yet a major institutional gap remains: the closed nature of the Supreme Court’s process. Unlike the Constitutional Court’s public hearings, reviews are conducted entirely on paper, without oral arguments or public records. This opacity obscures judicial reasoning and limits doctrinal development. Introducing an open-examination mechanism—allowing limited oral arguments and expert input—would enhance transparency, accountability, and confidence in judicial outcomes. 

Together, these 2 forms of review—the Constitutional Court’s normative oversight and the Supreme Court’s regulatory control—constitute Indonesia’s dual guardianship of legality. 

The Case for Constitutional Complaint 

Despite this dual mechanism, a gap remains: neither court addresses individual violations of constitutional rights arising from administrative actions or lower-court rulings unconnected to flawed laws. 

Introducing a constitutional complaint would close this gap. It would allow citizens—after exhausting ordinary remedies—to petition the Constitutional Court when their constitutional rights are infringed. Systems in Germany, South Korea, and Thailand show how such mechanisms enhance rights protection and judicial accountability. For Indonesia, this reform would: (i) provide direct remedies for citizens; (ii) promote uniform interpretation of constitutional norms; and (iii) generate systemic feedback to improve governance. 

With proper admissibility filters, this jurisdiction would extend constitutional justice from abstract norm control to concrete rights protection. 

Conclusion: From Overlap to Coherence 

Indonesia’s legal progress depends not on producing more regulations but on harmonizing and clarifying those already in force. Judicial review—at both the Constitutional Court and Supreme Court—serves as the nation’s most effective form of non-litigious litigation, resolving legal contradictions without political confrontation. 

Strengthening the Supreme Court’s process through open examination and expanding the Constitutional Court’s jurisdiction through constitutional complaints would mark the next evolution of Indonesia’s constitutional justice. One reform enhances transparency; the other accessibility. Together, they make the law clearer, fairer, and closer to the citizens it serves. 

Through these judicial pathways, Indonesia can move from regulatory confusion toward a coherent, rights-centered rule of law, where clarity in legislation and hierarchy translates into justice that is both certain and visible. 

---

Follow LexTalk World for more news and updates from International Legal Industry.

---