When Judicial Restraint and Judicial Activism Can Be Applied

According to Aileen Kavanagh, there are at least four “causal” condition for applying the approach of judicial restraint. First, there must be limitations on the authority of the judiciary regulated by law to decide cases that are very complex 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 counterproductive risks 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 merely based on majority considerations.

Third, to restore and protect the constitutional rights of citizens that have been violated, both individually and collectively. Fourth, to align the development of global justice with the use of comparative and international law.

From the reasons for the two approaches, both approaches of judicial activism or judicial restraint have their respective shortcomings and advantages. 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, but also very much needed (necessary evil) then the approach must be carried out carefully “selectively” and proportionally.

Therefore, judges in applying the approach of judicial activism and judicial restraint must be based on specific cases. So 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 truly be realized in people's lives.