As mentioned in the introduction, the Indonesian Constitutional Court was originally established with the purpose of serving as a negative legislature. It originally had the role of granting the applicant's request in a judicial review case by declaring a law to be in violation of the Constitution, thereby rendering it legally invalid. Nevertheless, due to the growing complexity of the cases it faced, the Constitutional Court transitioned from its previous role as a negative legislature to a positive legislature (Huda, 2019). Operating as a positive legislature, the Constitutional Court holds the power of a judicial institution, as it is capable of making decisions that not only review existing norms but also establish new ones (Láštic & Steuer, 2018).

The Constitutional Court's expanding function as a positive legislature was evident in its regulatory decisions, which were characterised by the conditionally constitutional and conditionally unconstitutional models (Buana, 2020). The following are examples of Indonesian Constitutional Court decisions that employ these two models:

First, conditionally constitutional. This implies that the legal material under review will only be deemed constitutional if it aligns with the criteria established by the Constitutional Court's decision (Safa’at & Widiarto, 2021). Decision Number 102/PUU-VII/2009 is an illustration of a Constitutional Court decision that employs the conditional constitutional model. This decision evaluates Law No. 42 of 2008, which pertains to the general election of the president and vice president. The law stipulates that only Indonesian citizens who are registered on the Permanent Voter List are eligible to vote in the general election. The Constitutional Court issued a positive legislature decision after reviewing the law, stating that Article 28 and Article 111 of Law No. 42 of 2008 are constitutional, provided that they are interpreted to include the following: Indonesian citizens who are not registered in the Permanent Voter List may still exercise their right to vote as long as they present their identity card, family card, or passport at the voting venue that corresponds to their hamlet/neighborhood of origin (Gaffar, 2016). This decision is considered positive legislature because it establishes positive norms, such as legislative institutions, that regulate the eligibility of Indonesian citizens to exercise their right to vote. This includes not only those who are registered with the Permanent Voter List but also those who can present their identity card, family card, or passport at the voting venue.

Second, conditionally unconstitutional. This refers to a ruling that declares a law under review to be unconstitutional if certain conditions set by the Constitutional Court are not satisfied (Safa’at & Widiarto, 2021). Decision No. 112/PUU-XX/2022 is one of the Constitutional Court's decisions that utilizes this model. This decision evaluates Article 34 of Law No. 30 of 2002, which pertains to the Corruption Eradication Commission. The article stipulates a four-year term for the appointment of the Corruption Eradication Commission chairperson. Nevertheless, the Constitutional Court declared in its ruling that this article was conditionally in violation of the constitution, provided that it was not interpreted as "The head of the Corruption Eradication Commission holds office for five years and can be re-elected for only one term." The Constitutional Court's role as a positive legislature is evident in this case, as the court's decision changed the Corruption Eradication Commission leadership's term of office from four years to five years (Aji, 2023).

The role of the Constitutional Court has sparked numerous debates among legal professionals and scholars. Mahfud MD, the former Chief Justice of the Indonesian Constitutional Court from 2008 to 2013, outlined 10 guidelines that the Court should adhere to. One of these guidelines emphasises that the Court should avoid making decisions that have a regulatory impact. For instance, a decision to annul is accompanied by the necessary steps to reorganise the contents of the repealed law, including the methods and institutions involved. Mahfud MD made this statement as the regulatory field falls under the legislative domain (MD, 2009). Therefore, the Court is limited to determining whether a law is constitutional or unconstitutional without the necessity of stating specific circumstances.

In her dissertation titled "Problematika Putusan Mahkamah Konstitusi yang Bersifat Positive Legislature (Problems of the Constitutional Court's Decisions with a Positive Legislature Characteristics)," (Martitah, 2013) highlights the original purpose of establishing the Constitutional Court as a norm canceler rather than a norm shaper. Nevertheless, Martitah provided a thorough explanation for the transformation of the Constitutional Court into a positive legislature, citing a compelling ratio legis. According to her research findings, it is evident that certain Constitutional Court decisions prioritise justice over the law. These decisions have made significant progress in bridging the gap between the law and societal development, ultimately leading to the attainment of substantive justice (Martitah, 2013).

Even, Mahfud MD admitted that not all of the boundary signs he had formulated could be valid and maintained. Current developments and legal demands finally overturned several of these barriers, including the ability to make positive legislative decisions in order to create substantive justice (Martitah, 2013). According to Steamer and Wolfe, the shift in the role of the court from negative legislature to positive legislature also occurred in the United States Supreme Court with the strengthening of the principle of "judge-made law" in the constitutional field. The reason is that laws drafted by legislative institutions often experience gaps in societal developments and other legal regulations, both vertically and horizontally (Steamer & Wolfe, 1987). As a result, judges are required to exercise activism in interpreting the constitution (judicial activism) and go beyond the boundaries of interpretation that have been considered standard (judicial restraint) (Claus & Kay, 2009).

Since the Constitutional Court is a judicial institution, it must be careful and thorough when issuing a positive legislative decision. The Court cannot be an independent lawmaker (Blom-Cooper, 2014). The Court can assist the legislative body in fulfilling its functions. However, the Court cannot replace the legislative house and enforce laws or use political discretion to create legal norms or provisions that do not exist in the Constitution (Brewer-Carías, 2012). Only in urgent cases should the Court issue regulatory decisions, such as to achieve substantive justice that cannot be achieved by cancelling the law being reviewed (Salman, 2017). Thus, the Constitutional Court Law needs to be revised to clearly and firmly state under what conditions the Court can make positive legislature decisions, as there are currently no firm regulations.

As previously mentioned, the Constitutional Court's decision to set new norms to replace the statute being examined changed the Court's position from negative legislature to positive legislature. According to (Láštic & Steuer, 2018), as a judicial institution with legislative authority, the Constitutional Court has become "The Third Legislator", allowing it to revise and create new norms.

The construction of positive legislature decisions ultimately poses two critical questions within the context of the Indonesian legal system. The initial question is whether a positive legislature decision can be classified as a legal rule in the regulatory sense, similar to a statutory regulation. Subsequently, does this decision have a position in the hierarchy of laws and regulations? In response to the initial inquiry, positive legislature decisions cannot be compared to statutory regulations that require special formation procedures in accordance with the mandate of Law No. 12 of 2011, such as those that must be established by the appropriate institution or officials. Additionally, there is a conformity between the type, hierarchy, and content material of these regulations and those of other regulations. Furthermore, positive legislature decisions cannot be regarded as a legal rule, as the Constitutional Court lacks the capacity to enact new laws, unlike the Legislative House and the President. This decision can merely modify or introduce new standards within existing laws. Consequently, this decision model is not associated with Law No. 12 of 2011.

Nevertheless, upon examination of the evidence, as legal norms (regeling), positive legislature decisions exhibit similarities to statutory regulations. (Indrati, 2000) clarified that legal norms are general, abstract, and continuous. General refers to the fact that legal norms are intended to be applied to a wide range of individuals rather than a limited number of them. Abstract refers to the legal norm's intended application to a variety of specific legal events. Lastly, continuous (dauerhafting) indicates that the legal repercussions of the regulation will persist until it is repealed or replaced by new regulations (Indrati, 2000).

The Constitutional Court's positive legislature decision also possesses three of the legal norms mentioned above: generality, abstraction, and continuity. Initially, the Court's decision is of a general nature due to the application of the erga omnes principle, which states that the decision is applicable to all Indonesians, not just the parties engaged in the case. Secondly, the Constitutional Court's decision is also abstract, as it can be used as a legal foundation for responding to a variety of legal events rather than just one specific legal event. Third, the court's decision is not only applicable once, but it is also indefinitely applicable to address a variety of future legal events.

Constitutional Court Decision No. 97/PUU-XIV/2016, which reviews Law No. 23 of 2006 juncto Law No. 24 of 2014 on Population Administration illustrates the three characteristics of legal norms, namely general, abstract, and continuous. This is a crucial decision issued by the Constitutional Court in 2016. This decision allows religious beliefs to be included in the religion column on the resident identity card and family card, addressing concerns that the previous law did not accommodate them. The decision ruled that religious beliefs could be added to these documents, which previously only listed officially recognised religions. The word "religion" in Article 61 clause (1) and Article 64 clause (1) of Law No. 23 of 2006 juncto Law No. 24 of 2013 was found contradictory to the 1945 Constitution if it was not read to include "beliefs." This was part of the legal consequences of Constitutional Court Decision No. 97/PUU-XIV/2016, which requires the state to oblige Indonesian believers to fill in the religion column on population documents like electronic identification cards, family cards, marriage certificates, birth certificates, etc. (Hermawan et al., 2021).

Three characteristics of legal norms are identified in Decision No. 97/PUU-XIV/2016, i.e., general, abstract, and continuous. It is referred to as a general rule because it is applicable to followers of other believers throughout Indonesia, along with the applicant. Then, it is referred to as abstract because the decision above is not only a response to legal events experienced by the applicant. However, it is also a response to other legal events related to population administration for believers. Due to its general and abstract nature, Decision No. 97/PUU-XIV/2016 must be continuous. This means that this decision applies to respond to similar events or legal cases in the future. Based on the three characteristics of legal norms mentioned earlier, the Constitutional Court's positive legislature decision can be classified under the regeling category, similar to statutory regulations.

This positive legislature decision then raises further questions, namely: What is the position of the positive legislature decision in the hierarchy of laws and regulations in Indonesia? According to Article 7 and Article 8 of Law No. 12 of 2011, the Constitutional Court's decision does not include the types and hierarchy of laws and regulations. However, the content of the Constitutional Court Decision can be classified as regulatory content (regeling). Even, Article 10 clause (1) letter d of Law No. 12 of 2011 stipulates that one of the content materials that must be regulated by law is the follow-up to the decision of the Constitutional Court.

The presence of a positive legislature decision such as this highlights a curious paradox: the decision possesses tangible substance similar to a legal norm, yet it lacks a specific form of legislative regulation. In order to address this paradox and prevent it from lingering, there are two possible alternatives to consider. The first option is to incorporate positive legislative decisions into the existing hierarchy of laws and regulations. The second option is to restrict Constitutional Court judges from making positive legislative decisions. Out of these two options, it is clear that the second option is not a wise choice. This is because many positive legislative decisions made by the Constitutional Court have become significant milestones, as they have successfully delivered substantive justice for the applicant (Patra, 2022). One such example is Decision No. 97/PUU-XIV/2016. The positive legislature decision is also widely regarded as a testament to forward-thinking laws that have effectively overcome the constraints that hinder people's perception of fairness (Martitah, 2013).

Consequently, it would be more judicious to incorporate the Constitutional Court's positive legislature decision into the hierarchy of laws and regulations. This can be accomplished by amending the law on the establishment of laws and regulations. This decision can be positioned above the law in the hierarchy of laws and regulations, as it was issued to negate or revise laws that conflict with the 1945 Constitution. This decision can be designated as part of the staatsgrundgesetz from the perspective of stufenfbau theory, as the Constitutional Court's decision is the most authoritative interpretation of the 1945 Constitution. It is anticipated that its inclusion in the hierarchy of laws and regulations will bolster the legitimacy of the Constitutional Court's decision as a legal norm that is final, binding, and erga omnes. Consequently, the decision will be required to be implemented by the legislators and adhered to by all members of Indonesian society.