INTERPRETATION OF JUDICIAL ACTIVISM AND

JUDICIAL RESTRAINT IN THE CONSTITUTIONAL

COURT’S DECISION

Lecturer : Riska Alkadri S.H., M.H.

Made by :

1. Jordi Herry 8111417160

2. Made Mahatma 8111417237
3. Iqbal Syariefudin 8111417254
4. Ifin Rizky 8111417382
5. Togu Septian 8111417384

1
 Table of Content

CHAPTER I PRELIMINARY …………………………………………………………….. 3

1.1. Background …………………………………………………………………. . . 3
1.2. Formulation of Problems …………………………………………………….. .. 3

1.3. The Objectives …………………………………………………………………..3

CHAPTER II DISCUSSION………………………………………………………………....4

2.1 Reasons why the power of constitutional court should be limited……………….4

2.2 The Differences between Judicial Activism and Judicial Restraint……………...6

CHAPTER 3 CONCLUSION ………………………………………………………………. 8

3.1. Closing …………………………………………………………………………...8

BIBLIOGRAPHY ……………………………………………………………………………9

2
 CHAPTER I

PRELIMINARY

1.1. Background

The Constitution comes from the Constituers verb derived from French, which means
formation. Constitution is also called formation because the constitution contains a
fundamental rule concerning the first joints to enforce a large building called a state.The
Constitutional Court was born as a new institution in the field of judicial authority due to the
amendment of the 1945 Constitution, as set forth in article 24, paragraph 2.

One of the tasks of the Constitutional Court is that it has the authority to hear at the first
and final level the final decision to test Law against the Constitution.Constitution in other terms
Constitution or Verfasung is distinguished from the Constitution or Grundgesetz, many people
who because of an oversight equate that the constitution and the Basic Law are the same when
in fact the Constitution is actually written the Constitution.

The Constitutional Court in performing its duties is overseen by the Judicial

Commission, such as the function of Judicial activism and restraint or Judicial restriction which
is an opposite approach where judicial activism and judicial restraint constitute an examination
of the improper use of government or constitutional authority in performing its duties or in
other meanings to prevent from exceeding the boundaries of the constitution in Indonesia.

1.2. Formulation of Problems

1. Why the Constitutional Court should be limited in carrying out its duties ?
2. What is the difference between judicial activism and judicial restraint ?

1.3. The objective

1. To know the reason why the power of Constitutional Court should be limited
2. To know the differences between Judicial activism and Judicial restraint

3
 CHAPTER II

DISCUSSION

2.1 Reason why the power of Constitutional Court should be limited

The Constitutional Court has a function to guard the constitution to be implemented

and respected by both state and community power organizers. The Constitutional Court is also
the final interpreter of the Constitution through its decision on a matter. In other countries the
equivalent of the Constitutional Court is also a protector of the constitution. The constitutional
guardian function can also be interpreted to safeguard human rights ie if there is a case related
to human rights then there the Constitutional Court may take a role to determine the attitudes
related to human rights.1

Indonesia embraces a separation of power system that John Locke says in the book
"Two Trities on Civil Government" listed in Chapter 12 entitled "Of the Legislative, Executive
and Federative Power of the Commonwealth." He said that within a state of power -the power
is divided into three namely Legislaif, Executive and Federative. Legislative power is the
power to make the Act, the executive is authorized to implement the Law while the Federative
is the power which includes the power of war and peace, making unions and alliances and all
actions with all persons and bodies abroad. Based on John Locke's thinking, a Montesquieu in
his book entitled "L Esprit des Lois." It suggests that in every government there are three types
of powers: the executive, the legislature and the judiciary. The Constitutional Court as a judicial
institution has the power to hear. The benefit of separation of power itself is to prevent the
accumulation of power in one person or one particular institution, as well as to better guarantee
human rights as a mandatory right of every human being, therefore the presence of the judicial
institution in this case the Constitutional Court none of which is for the implementation of the
guarantee of the exercise of human rights. It can be concluded that the judiciary should not be
interfered with by other parties whether it is the executive or legislative, even the influence of
an individual. Judicial power must be free in determining its decision in determining a case.
Interference in the field of judicative means to eliminate the principle of a legal state embraced
by the legal states of one of Indonesia, it can also lead to the loss of guarantees of human rights
in the event of an intervention of the judiciary.

1
Prodjodikoro,Wirjono. Azas-Azas Hukum Tata Negara Di Indonesia.Jakarta.Dian Rakyat. 1977

4
 That is why the judiciary has the power to prosecute justice like the Constitutional Court
as a judicative institution, the Constitutional Court has the power to hear at the first and final
level whose decision is final to test a Law, to decide upon the dissolution of a political party,
to decide an election case, this causes the Constitutional Court to be an independent institution
without intervention from other parties. However, in this case the power of the institution as
well as the Constitutional Court should be limited so as not to cross the boundaries in
constitution that exist in Indonesia.

Constitution is the highest law that is useful to create justice, order and the realization
of ideal value values such as freedom or freedom and welfare or common prosperity and
freedom is meant here is the freedom of individual citizens must be guaranteed but the power
of the state must also stand upright so as to create orderly society and state. 2The powers of the
Constitutional Court shall be restricted to the means of appropriating or enacting the Law not
to violate public order and to maintain individual freedom. This limitation of power is
differentiated from Judicial activism and Judicial restraint.

2
Kusnardi, Harmaily Ibrahim. Penghantar Hukum Tata Negara Indonesia.Jakarta.Sinar Bakti.1983

5
2.2 The Differences between Judicial Activism and Judicial Restraint

Judicial activism and judicial neglect are the opposite approach. Judicial activism and
judicial restraint, which is highly relevant in the United States, is related to the judicial system
in a country, and it is an examination of the improper use of government or constitutional
bodies. Judicial activists are interpretations of the Constitution to advocate contemporary
values and con3ditions. On the other hand, legal restrictions limit the power of judges to impose
legislation.
In judicial neglect, the court must uphold all state congress and legislative acts unless
they violate the Constitution of the state. In judicial neglect, the courts generally delay the
interpretation of the Constitution by Congress or other constitutional bodies.

In the case of judicial activism, judges are required to use their power to remedy any
injustice, especially when other constitutional bodies do not act. This means that judicial
activism has a major role in formulating social policy on issues such as the protection of
individual rights, civil rights, public morality, and political injustice.

Judicial restraint and judicial activism have different goals. Judicial restraint helps to
maintain a balance between the three branches of government; judiciary, executive, and
legislature.4 In this case, judges and courts encourage the review of existing laws rather than
modifying existing laws. When it comes to the purpose or power of judicial activism, it gives
the power to override certain actions or judgments. For example, the Supreme Court or the
appellate court may reverse some previous decisions if they are wrong. The judicial system
also acts as checks and balances and prevents three branches of government; the judiciary, the
executive and the legislature become strong.

The meaning of Judicial Activism is the interpretation of the Constitution to advocate

contemporary values and conditions. Judicial restraint limits the power of judges to impose a
law. In judicial restraint, courts must uphold all state congress and legislative acts unless they

3
Huda, Ni’Matul. Hukum Tata Negara Indonesia. Jakarta.Rajagrafindo Persada.2015

4
Asshiddiqie, Jimly. Penghantar Ilmu Hukum Tata Negara. Jakarta.Rajagrafindo Persada.2015

6
violate the Constitution of the state. In the matter of judicial activism, judges are required to
use their power to correct any injustices, especially when other constitutional bodies are not
acting.

Judicial activism has a major role in formulating social policy on issues such as the
protection of individual rights, civil rights, public morality, and political injustice. 5When it
comes to the purpose or power of judicial activism, it gives the power to override certain actions
or judgments. For example, the Supreme Court or the appellate court may reverse some
previous decisions if they are wrong.

5
Titik Triwulan ,Tutik. Konstruksi Hukum Tata Negara Indonesia Pasca Amandemen UUD 1945. Jakarta:
Kencana Prenada Media Group. 2010.

7
 CHAPTER III

CLOSING

3.1 Conclusion

From the descriptions above ,we already discusses about the Constitutional Court and
its limit at making constitute. Judicial Activism and Judicial Restraint is needed to avoid
Constitutional Court making the law that against the public order so the orderliness of the state
not disturbed by law that did not match with the society, because we know that constitution is
the highest law in a state and as the fondation of state so we need to limit its power.

In the case of judicial activism, judges are required to use their power to remedy any
injustice, especially when other constitutional bodies do not act. This means that judicial
activism has a major role in formulating social policy on issues such as the protection of
individual rights, civil rights, public morality, and political injustice.

Judicial restraint and judicial activism have different goals. Judicial restraint helps to maintain
a balance between the three branches of government; judiciary, executive, and legislature. In
this case, judges and courts encourage the review of existing laws rather than modifying
existing laws. When it comes to the purpose or power of judicial activism, it gives the power
to override certain actions or judgments. For example, the Supreme Court or the appellate court
may reverse some previous decisions if they are wrong. The judicial system also acts as checks
and balances and prevents three branches of government; the judiciary, the executive and the
legislature become strong.

The meaning of Judicial Activism is the interpretation of the Constitution to advocate

contemporary values and conditions. Judicial restraint limits the power of judges to impose a
law. In judicial restraint, courts must uphold all state congress and legislative acts unless they
violate the Constitution of the state. In the matter of judicial activism, judges are required to
use their power to correct any injustices, especially when other constitutional bodies are not
acting.

8
 BIBLIOGRAPHY

Asshiddiqie, Jimly. 2015. Penghantar Ilmu Hukum Tata Negara.

Jakarta.Rajagrafindo Persada.

Huda, Ni’Matul. 2015. Hukum Tata Negara Indonesia. Jakarta.Rajagrafindo

Persada.

Kusnardi, Harmaily Ibrahim.1983. Penghantar Hukum Tata Negara

Indonesia.Jakarta.Sinar Bakti.

Prodjodikoro,Wirjono.1977. Azas-Azas Hukum Tata Negara Di

Indonesia.Jakarta.Dian Rakyat.

Titik Triwulan ,Tutik.2010. Konstruksi Hukum Tata Negara Indonesia Pasca

Amandemen UUD 1945. Jakarta: Kencana Prenada Media Group.