Is The Constitutional Court a Positive Legislature? (Case Study of Constitutional Court Decision Number 90/PUU- XXI/2023 About Judicial Review of Article 169 Letter Q of Law Number 7 Year 2017 Concerning General Election)

Abstract

The Constitutional Court Decision No. 90/PUU-XXI/2023 which changed the minimum age limit for presidential and vice-presidential candidates has caused legal controversy. This research focuses on the role of the Constitutional Court in the Indonesian constitutional system, especially in relation to the concept of positive legislature which leads to the formation of new norms, compared to the negative legislature function which only annuls provisions that are contrary to the constitution. The method used in this research is normative juridical with an approach to the applicable legal norms. Data sources include primary, secondary, and tertiary legal materials that are analyzed qualitatively. The results showed that in this decision, the Constitutional Court not only interpreted the law, but also created new norms without a real legal vacuum. This has implications for the shifting role of the Constitutional Court, which has the potential to exceed its constitutional authority. In conclusion, although the Constitutional Court has the authority to interpret laws, the limits to its role as a positive legislature need to be clarified so as not to cause legal uncertainty. Therefore, it is recommended that the legislators set firmer limits on the scope of the Constitutional Court's authority to add or change legal norm.