Conditional Constitutionality, Pragmatism and the Rule of Law

5 Pages Posted: 7 May 2009  

Simon Butt

The University of Sydney Law School

Abstract

Indonesia's Constitutional Court has the power to declare invalid statutes that it deems conflict with Indonesia's Constitution. In several decisions, however, it has declared a statute to be 'conditionally constitutional'. In these cases, the Court has refused to strike down the statute, but has declared that the constitutionality of the statute depends largely on the way the statute is applied or implemented in practice. This article raises concerns about the Court’s use of this concept and suggests that 'conditional constitutionality' might not sit comfortably with the 'rule of law'.

Keywords: Indonesia, law, constitutional law, judicial review, comparative law

JEL Classification: K10, K30

Suggested Citation

Butt, Simon, Conditional Constitutionality, Pragmatism and the Rule of Law. Hukumonline, May, 2008; Sydney Law School Research Paper No. 09/28. Available at SSRN: https://ssrn.com/abstract=1400413

Simon Butt (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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