Judicial review is the power of a court to review the acts of the legislature or the executive and to declare them invalid if they conflict with a higher legal norm, such as the constitution or a statute.
Two Types
Constitutional review tests legislation against the constitution. Administrative review tests the decisions and regulations of public authorities against the statutes that empower them and against general principles of legality, fairness and rationality.
Historical Development
In Marbury v Madison (1803), the United States Supreme Court asserted the power to strike down legislation contrary to the Constitution. In the United Kingdom, where Parliament is sovereign, courts cannot strike down Acts of Parliament, but they review executive action for illegality, irrationality and procedural impropriety, and may declare legislation incompatible with the Human Rights Act 1998.
The Indonesian System
Indonesia divides judicial review between two courts. Under Article 24C of the 1945 Constitution, the Constitutional Court reviews laws against the Constitution. Under Article 24A, the Supreme Court reviews regulations below the level of law, such as Government Regulations and ministerial regulations, against laws. Individual administrative decisions are challenged before the State Administrative Courts.
Effect
When the Constitutional Court grants a petition, the provision concerned no longer has binding legal force, or it may be declared conditionally constitutional, meaning valid only if interpreted in the way the Court specifies. Such decisions are final and binding from the moment they are pronounced.