Legal Literacy - This article provides an in-depth analysis highlighting expert views, concrete examples, and practical implications of judicial activism and judicial restraint.
Understanding the Dilemma of Judicial Activism and Judicial Restraint in the Constitutional Court
Logic and reasoning are the most important parts of building a good legal argument. Nowadays, the dynamics of legal reasoning have developed with very diverse approaches. B. Arief Sidharta reveals that argumentation in legal reasoning is a systematic problematic thinking activity. As far as the author has observed in national media, one of the hot topics of discussion and debate by legal observers in Indonesia is the approach judicial activism and judicial restraint taken by judicial institutions. Especially, Constitutional Court in deciding a case.
In simple terms, the approach of judicial activism or judicial restraint is a principle that was born and based on democracy from the legal tradition of the United States. Arthur Schlesinger defines judicial activism as a (judicial discretion) which arises due to the complexity of problems that must be resolved by the court without sufficient law (in the formal sense). Meanwhile, James B. Thayer interprets judicial restraint, as the highest principle of constitutional law theory. This principle rejects the position of the judiciary as the main institution in the political system of a country.
If examined from the above understanding, both approaches judicial activism or judicial restraint are rooted in democracy. It's just that there is a difference in emphasis between the two approaches. What and what are the differences between these approaches?
Characteristics of Judicial Restraint and Judicial Activism
Characteristics judicial restraint (judicial restraint) places more emphasis on the judicial institution limiting itself, so as not to interfere in the authority of the legislature, executive and other institutions and drafters of laws and regulations. So as not to judge or make policies that are clearly not its authority. Approach Judicial restraint assesses that the judicial institution is not the main actor in the superstructure-political relations. It prefers that the dominant role remains in institutions that reflect popular representation, “for example, the executive and legislative”. As in the doctrine of the separation of powers (trias politica).
Viewed carefully, the approach judicial restraint is divided into three categories. First, formalism is an approach that firmly states that judges only carry out the orders of the law and do not make laws. Second, process jurisprudence clearly states that judges do not enter the realm of legislative or executive authority in making policy decisions. Third, constitutional restraint, it is very difficult for judges to declare unconstitutional actions taken by the legislature or executive in making laws.
This approach tends to make judges shackled by the content contained in certain legal principles and doctrines, which ultimately makes it difficult for judges to provide the substantive justice that should be felt by society.
On the other hand, the approach judicial activism (judicial activism). This is an approach taken by judges and judicial institutions to control or influence political and administrative institutions, both in the legislature and the executive, in this case making policies and decisions faced by the judiciary. Judicial activism tend to regard the court as a dominant subject in inter-institutional relations at the political superstructure level. Not infrequently, judges also tend to create legal rules (judges making law) based on the legal reasoning of their arguments in viewing or assessing cases concretely (in concreto). Judges who frequently use this approach are then known as activist judges.
Upon closer inspection, judicial activism aims to realize more progressive judicial decisions in addressing various problems and concrete issues that develop in society. However, it should be noted that using this approach in deciding cases is considered to create bias or subjectivity on the part of the judge, which will affect the socio-political life of the decision handed down.
When Judicial Restraint and Judicial Activism Can Be Applied
According to Aileen Kavanagh, there are at least four “causal” conditions for applying the approach of judicial restraint. First, there must be limitations on judicial authority regulated by law to decide very complex cases and cannot predict other problems that will arise from the decision. Second, the incremental nature of court decisions must be realized that the decision will carry a counterproductive risk so that it will fail to achieve the expectations or intentions to be achieved.
Third, that the judiciary is lower than the legislature and executive in making a decision or policy. Fourth, there is a demand for the judiciary to decide cases fairly, so that the decisions of the judiciary are respected by parliament, the executive, and the wider community.
On the other hand, judicial activism in reality, it is taken to protect human rights and democratic principles. Pan Mohamad Faiz said that there are four steps in applying this principle. First, to protect the rights and freedoms of citizens, both explicit and implicit in the constitution. Second, to provide maximum protection to minority or vulnerable groups who experience negative impacts from decision-making processes that are based solely on majority considerations.
Third, to restore and protect the constitutional rights of citizens that have been violated, both individually and collectively. Fourth, to adapt to the development of global justice by using comparisons and international law.
From the reasons for both approaches, both approaches judicial activism or judicial restraint have their respective advantages and disadvantages. Nevertheless, judicial restraint because its characteristic style tends to be self-limiting, this approach must be seen as judicial prudence to ensure the continuity of the separation of powers. On the other hand, judicial activism must be seen at least as something dangerous, while also being very much needed (necessary evil) then the approach must be carried out with caution, "selectively" and proportionally.
Therefore, judges in applying the approach judicial activism and judicial restraint must be based on specific cases. Thus, it is necessary to establish a legally valid “minimum trigger” by referring to the positive legal system. When can these two approaches “color” court decisions so that the values of justice can be truly realized in people's lives.
Comments (0)
Write a comment