JUDICIAL ACTIVISM OR SELF-RESTRAINT: SOME INSIGHT INTO THE INDONESIAN CONSTITUTIONAL COURT

DOI

10.2991/iclgg-17.2018.32How to use a DOI?

Keywords

Constitutional Court, Judicial Review, Judicial Activism, Judicial Self-Restraint

Abstract

The Constitutional Court of Republic of Indonesia is centralized judicial review institution which implements a posteriori and abstract control. Constitutional court decision often politically sensitive and involve important issues. On the one hand handing down strong decisions that uphold important constitutional principles can bring great benefits to citizens and can strengthen support for democracy but on the other hand, strong role of the court in judicial review tends to encroach increasingly on the territory of the law making institution. This article examines the decision of constitutional court in the framework of a tension between constitutionalism and democracy, especially from theoretical or conceptual approach. As result of examining its decisions, Indonesian Constitutional Court may reflect two characters; judicial activism as characterized by acting as law-maker and using policy in judicial decisions and/ or judicial self restraint. Recent Indonesian experience shows that judicial review of legislation is not a simply of judicial control over law-making institution, as it brings tension in the context of power relations in the scheme of separation of power. Relationship between the court and legislature, in respective of judicial review, will culminate in the philosophy of the judiciary. However, as constitutionalism and democracy are virtue, decisions of the Constitutional Court in judicial review should create mode of self-limitation within the framework of the principle of separation of powers.

Copyright

© 2018, the Authors. Published by Atlantis Press.

Open Access

This is an open access article distributed under the CC BY-NC license (http://creativecommons.org/licenses/by-nc/4.0/).

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TY  - CONF
AU  - Radian Salman
PY  - 2017/11
DA  - 2017/11
TI  - JUDICIAL ACTIVISM OR SELF-RESTRAINT: SOME INSIGHT INTO THE INDONESIAN CONSTITUTIONAL COURT
BT  - Proceedings of the International Conference on Law, Governance and Globalization 2017 (ICLGG 2017)
PB  - Atlantis Press
SP  - 228
EP  - 242
SN  - 2352-5398
UR  - https://doi.org/10.2991/iclgg-17.2018.32
DO  - 10.2991/iclgg-17.2018.32
ID  - Salman2017/11
ER  -