Judicial Review Oleh Mahkamah Konstitusi: Judicial Activism vs. Judicial Restraint dalam Perspektif Kebebasan Kehakiman

Abstract

The discourse between the application of judicial activism or judicial restraint has become a hot issue of judicial review authority where recently the Constitutional Court through the act of judicial activism has carried out rule breaking which has attracted attention. In the practice of judicial review authority, the Constitutional Court came to the choice between judicial activism or judicial restraint. Judicial activism is a situation where the judicial review of the Constitutional Court affects the existence of positive law, while the judicial restraint of the Constitutional Court in exercising the authority of judicial review tends to follow its position as negative legislature. Sometimes, the Constitutional Court positions itself as judicial activism in several decisions and also positions itself as judicial restraint. The research method used is normative juridical with secondary materials such as laws and decisions of the Constitutional Court. The results of this study confirm that in the practice of judicial review, the Constitutional Court has practised judicial activism or judicial reistrain with all its debates. Then this research confirms that as an institution that has a role in maintaining the constitution and state ideology, the Constitutional Court must tend to lead to judicial activism while still paying attention to the norms contained in the basic law and also the ideology of the state.

Keywords

• judicial review
• judicial activism
• judicial restraint