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. Today, the dynamics of legal reasoning have developed with very diverse approaches. B. Arief Sidharta revealed 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 and debates among legal observers in Indonesia is the approach of judicial activism and judicial restraint carried out by judicial institutions. In particular, the Constitutional Court in deciding a case.
In simple terms, the approach of judicial activism or judicial restraint is a principle born and based on democracy from the legal tradition of the United States. Arthur Schlesinger defines judicial activism as a (judicial discretion) that arises due to the complexity of problems that must be resolved by the court without sufficient law (in the formal sense). Meanwhile, James B. Tahyer defines 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 in a country.
If examined from the above understanding, both approaches judicial activism or judicial restraint have their roots 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 judicial institutions limiting themselves, so as not to interfere in the affairs of 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 their authority. The approach of Judicial restraint assesses that judicial institutions are not the main actors 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 teachings of the theory of separation of powers (trias politica).
If viewed carefully, the approach of judicial restraint is divided into three categories. First, formalism is an approach that strictly states that judges only carry out the orders of the law and do not make laws. Second, process jurisprudence is the position of the judge clearly not entering the realm of the authority of the legislature or executive in making the decisions they make. 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 in the end makes it difficult for judges to provide substantive justice that should be felt by society.
On the other hand, the approach of judicial activism (judicial activism). Is an approach taken by judges and judicial institutions to control or influence political and administrative institutions, both in the legislature and executive, in this case making policies and decisions faced by judicial institutions. Judicial activism tends to consider the court as a dominant subject in relations between institutions at the political superstructure level. It is also not uncommon for judges to tend to make legal rules (judges making law) based on the legal reasoning of their arguments in seeing 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 concrete problems and 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” 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.
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