Defending Strong Constitutional Review in a Declining Democracy: The Case of Indonesia’s Eroding Limitation of Power

Indonesia’s constitutional democracy is in constant decline. Various attacks to undermine constitutional limitation of power and to shrink civic space using legal tools were used by the current Joko Widodo’s regime. The exercise of strong constitutional review by the Indonesian Constitutional Court may be the answer to prevent tyranny. Some global legal scholars, like Jeremy Waldron, believe that this is not the case. They believe that the mechanism lacks legitimacy and becomes problematic in a democratic system to resolve rights issues. This article demonstrates that in the case of a declining democracy, the Court’s power to strike down unconstitutional legislation is still needed. The research was conducted using theoretical analysis to study the arguments against the practice of strong constitutional review and uses theories that defend the mechanism as a rebuttal. Historical approaches were also utilised to help explain the history of democratisation in Indonesia, the phenomena of democratic decline, and the judiciary’s contribution to democratisation. The study suggests that the strong constitutional review mechanism is still the most suitable in Indonesia’s decaying democracy, where the Court can contribute to the improvement of institutional checks and reform, as well as reasserting constitutional limitations. Despite the Court’s openness and limitations, constitutional review remains a useful mechanism but insulation from political interference and increasing diversity of the Court can improve the robustness of the process and its legitimacy.