Konsep Kebijakan Hukum Terbuka dalam Pengujian Undang-Undang oleh Mahkamah Konstitusi Terkait Pemilu (Studi Putusan MK No. 55/PUU-XXI/2023, Putusan MK No. 90/PUU-XXI/2023, Putusan MK No. 141/PUU-XXI/2023)

Abstract

The development of democracy in Indonesia has increasingly opened up space for public participation in the process of making public policies, including through the mechanism of judicial review in the Constitutional Court. One of the important dynamics in judicial review is the application of the concept of open legal policy where the constitution authorizes the legislators to regulate dynamic norms in accordance with the needs of society without explicitly regulating the material of the law to be formed. For example, Decision No. 55-90-141/PUU-XXI/2023 related to the minimum age requirement for presidential and vice presidential candidates regulated in Article 169 letter q of Law No. 7 of 2017 concerning general elections. This research is normative legal research which is legal research conducted by examining library materials or secondary legal materials. The data sources used include primary, secondary and tertiary legal materials collected using literature studies. This research uses a conceptual approach, statutory approach and case approach. The inconsistency of the Constitutional Court emerged when it interpreted this concept differently in three of its decisions, which is Decision No. 55-90-141/PUU XXI/2023. The inconsistency of the Constitutional Court can be seen from the rapid and drastic change in stance regarding the application of open legal policy. The Constitutional Court in Decision No. 55/PUU-XXI/2023 stated that the age issue is an open legal policy and is the authority of the legislator, but then in Decision No. 90/PUU-XXI/2023 the Constitutional Court inconsistently added new norms that did not previously exist. Even in Decision No. 141/PUU-XXI/2023, the Constitutional Court reiterated that the norms related to the age requirements of presidential and vice-presidential candidates are an open legal policy that must be regulated by the legislators. This rapid change in the Constitutional Court's stance that is not based on strong legal justification can reduce public confidence in its independence and objectivity.