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PROBLEMATIKA IMPLEMENTASI PUTUSAN MAHKAMAH KONSTITUSI YANG BERSIFAT NON SELF EXECUTING
After the post-reform transition, Indonesia shifted from the supremacy of the People’s Consultative Assembly to constitutional supremacy, accompanied by the establishment of the Constitutional Court as the guardian of the Constitution with authority to review the constitutionality of statutes. Despite this institutional design, serious challenges remain in the implementation of Constitutional Court decisions, particularly those that are non self-executing. In practice, such decisions are often delayed, ignored, or not complied with by their addressees, a phenomenon widely discussed as constitutional disobedience.This study employs a qualitative normative legal method, using conceptual, case and statutory approaches. Primary legal materials consist of the 1945 Constitution, relevant legislation, and selected Constitutional Court decisions. The research aims to analyze the obstacles to implementing non self-executing Constitutional Court decisions and to examine constitutional disobedience by addressees through the perspective of maṣlaḥah mursalah. The research findings demonstrate that, based on theories concerning the factors influencing law enforcement, several principal factors constitute challenges to the implementation of Constitutional Court decisions. These include legal factors, particularly the lack of clarity regarding the binding nature of decisions and the absence of sanctions; law enforcement factors; and infrastructural factors, notably the absence of an executorial institution. These problems give rise to legal uncertainty, weaken the principle of checks and balances, and delay or even negate the realization of justice. Furthermore, from the perspective of maṣlaḥah mursalah, Constitutional Court decisions are understood to be consistent with the principles of maqāṣid al-sharīʿah, such that compliance with them constitutes a form of maṣlaḥah ḍarūriyyah (essential public interest). Accordingly, constitutional disobedience by the addressees of Constitutional Court decisions may be classified as mafsadah that results in ḍarar (harm). This study concludes that strengthening judicial orders within Constitutional Court decisions and enhancing participatory public oversight are necessary to ensure effective implementation. Such measures are expected to reinforce constitutional control mechanisms and promote a more effective system of checks and balances.
FAKULTAS SYARIAH DAN HUKUM, UIN SUNAN KALIJAGA YOGYAKARTA
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