Positive or Negative Legislator? Dissecting the Ideal Role of the Constitutional Court
Legal Literacy - Every time the Constitutional Court (MK) issues a controversial and far-reaching decision—such as Decision Number 90/PUU-XXI/2023 concerning the age limit for presidential and vice-presidential candidates...
Table of Contents
- Two Paths of Constitutional Judges: Understanding Judicial Activism and Judicial Restraint
- Judicial Activism: Judges as Discoverers of Progressive Justice
- Judicial Restraint: Judges as Guardians of Text and Legislative Will
- Practice Map in Indonesia: The Constitutional Court at a Crossroads
- Historical Moments of Judicial Activism that Changed History
- Moments of Judicial Restraint that Respect the Legislature
- Arguments for Judicial Activism: Why the Constitutional Court Should Take an Active Role
- Dual Mandate: Guardian of the Constitution and State Ideology
- Legal Basis: Obligation to Explore Living Justice
- Practical Needs: Overcoming Delays in Written Law
- Conclusion: Towards Responsible Judicial Freedom
Legal Literacy- Whenever theConstitutional Court(MK) issues a controversial and far-reaching decision—such as Decision Number 90/PUU-XXI/2023 concerning the age limit for presidential and vice-presidential candidates—public debate is inevitable. At the heart of the debate, there is often a fundamental discourse in constitutional law: should constitutional judges act as progressive "activists," or should they "restrain themselves" and leave policymaking to the legislative body?
These two poles of thought, known asjudicial activismandjudicial restraint, are not merely academic debates. The choice between the two determines the extent to which the MK can "interfere" in shaping the legal and political landscape in Indonesia. Both are rooted in the principle of judicial independence, but produce very different types of decisions. On the one hand, judicial activism is seen as an engine for realizing substantive justice. On the other hand, it is suspected of being a form of violation of the principle of separation of powers.
This article, referring to an in-depth analysis by Geofani Milthree Saragih et al., will thoroughly dissect the dichotomy betweenjudicial activismandjudicial restraint, mapping how these two approaches are practiced by the MK, and ultimately, formulating arguments about which ideal position the MK should take as the guardian of the constitution and state ideology.
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