Judicial Activism in the Practice of Law Examination on Parliamentary Threshold in the Constitutional Court

DOI

10.2991/978-2-38476-315-3_70How to use a DOI?

Keywords

Judicial Politics; Judicial Activism; Parliamentary Threshold

Abstract

One of the Court’s authorities is to assess the constitutionality of laws against the Constitution. When adjudicating a judicial review case, the Court tends to prioritize substantive justice over procedural justice, which still relies on conventional methods. In the process of law enforcement and achieving substantive justice, the Constitutional Court frequently adopts progressive legal approaches. This progressiveness is often realized through Judicial Activism. Judicial Activism creates the perception that the Court assumes some roles of the legislative and executive branches as lawmakers. Some even argue that when the Constitutional Court annuls the material content of a law, it functions as a legislative branch, especially in politically charged cases. This article discusses the application of judicial activism in deciding the constitutionality of the parliamentary threshold in the Election Law, an issue rife with political interests. By applying judicial activism, is the Court engaging in judicial politics? What role does the Constitutional Court play in interpreting the Election Law regarding the parliamentary threshold? The purpose of this article is to examine the Constitutional Court’s stance in providing justice, legal certainty, and benefits to justice seekers while maintaining its independence, ensuring that decisions are based on objective law rather than political considerations. The methodology of this article is normative empirical. The normative method describes and explains legal rules or norms reviewing judicial activism and judicial politics through theoretical, juridical, political sociological, legislative (statute approach), conceptual, and case approaches. Judicial activism by judges through their decisions aims to make the judiciary a reformer capable of fostering societal thinking and legal engineering while supporting national economic growth. In this context, judicial activism seeks to protect and enhance the democratic rights of citizens.

Copyright

© 2024 The Author(s)

Open Access

Open Access This chapter is licensed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International License (http://creativecommons.org/licenses/by-nc/4.0/), which permits any noncommercial use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

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TY  - CONF
AU  - Siska Yosephin Sirait
AU  - Hartiwiningsih Hartiwiningsih
AU  - Arief Hidayat
PY  - 2024
DA  - 2024/12/24
TI  - Judicial Activism in the Practice of Law Examination on Parliamentary Threshold in the Constitutional Court
BT  - Proceedings of the International Conference on Cultural Policy and Sustainable Development (ICPSD 2024)
PB  - Atlantis Press
SP  - 511
EP  - 516
SN  - 2352-5398
UR  - https://doi.org/10.2991/978-2-38476-315-3_70
DO  - 10.2991/978-2-38476-315-3_70
ID  - Sirait2024
ER  -