Studi Perbandingan Penerapan Judicial Activism dan Judicial Restraint dalam Praktik Judicial Review di Mahkamah Konstitusi Republik Indonesia

Abstract

Judicial activism is the court's response and adaptation to social change by developing principles drawn from the constitutional text and existing decisions to progressively implement the basic values of the constitution. Conversely, judicial restraint is an attempt by judges or courts to limit themselves within the framework of the principle of separation of powers. The problems to be studied are (1) How is the development of the practice of judicial review in the Constitutional Court of the Republic of Indonesia, (2) How is the application of judicial activism and judicial restraint in the practice of judicial review in the Constitutional Court of the Republic of Indonesia, (3) How is the concept of ideal restrictions in the application of judicial activism in the settlement of judicial review cases in the Constitutional Court of the Republic of Indonesia. The purpose of this study was to determine the development of the practice of judicial review, the application of judicial activism and judicial restraint in the practice of judicial review in the Constitutional Court of the Republic of Indonesia, and to determine the concept of ideal restrictions in the application of judicial activism in the settlement of judicial review cases in the Constitutional Court of the Republic of Indonesia. The research method used is normative juridical research using a statutory approach, case approach, and comparative approach. The data collection technique uses literature study, namely analyzing through book literature, laws and regulations, and scientific journals. The results of the study show that: (1) There are additional types of decisions, namely conditional decisions which are a form of implementation of judicial activism in the Constitutional Court of the Republic of Indonesia, (2) Decisions that are judicial activism are characterized by the interpretation of the constitution to achieve substantive justice while decisions that are judicial restraint are a form of restraint for the Constitutional Court not to exceed its authority, (3) The ideal concept of limitation is that judicial activism decisions can only be made once using the principle of prudence by judges on the grounds that there is a legal vacuum and an urgent legal situation that must be resolved immediately, and the ratio of judge approval is six to three