Law

Not long ago, precisely on 18 August, Indonesian society has just commemorate "Constitution Day" for the first time. Constitution Day Commemoration at least give the picture that the 1945 Constitution and the ideals of constitutionalism strengthened as a source of supreme law and the basic guidelines in the state of life.

Although the 1945 Constitution has been established 64 years ago, but the phase of life and awareness of constitutional citizen newly formed so rapidly within the last ten years. At least there are three factors that led to the mushrooming of constitutionalism in the midst of society. First, the form of implementation of the 1945 amendment that changed in 1999-2002; Second, the emergence of dozens of research institutions of the constitution; and Third, the touch of a court of judicial constitution (read: the Constitutional Court).

In the last context, Upendra Baxi said that the countries or post-socialist transition, such as Russia, Poland, and Hungary, they have succeeded in the spirit of its constitution Membumikan through judicial activism (judicial activism). Such activism was inspired by the philosophical meaning of a constitutional interpretation of the constitution rather than simply looking at catalogs of law rules, but rather as a statement of the principles of constitutional government must be executed.

Judicial activism itself is a court decision-making process through a different approach. This approach according to exceed Satyabrata long legal philosophy, because it is considered more modern and closer to real life people. Judicial activism is also understood as the dynamism of the judges who hold judicial power when making a decision without exceeding the limits of the constitution (SP Sathe, 2002).

In the meantime, significance and role of judges in managing the lives of the people have long echoed by Oliver Holmes and Roscoe Pound. In line with this, Benjamin Cordozo in his book "The Nature of the Judicial Process" argues that when the law lost his grip, so the judges can create law as a creative option through four methods of approach, namely the philosophical, historical, habits, and sociology. Such a view of the law Begawan in Indonesia known as a progressive law school (Satjipto Rahardjo, 2006).

Waves Pro-Cons

Today, judicial activism is growing fast in almost all countries of the world, not least in the countries that adopted civil law systems. However, the discourse of activism also helped birth the pros and cons among the elite, academics, practitioners, until the judge though. As a result, until the late 1990s have fragmented the three current main groups, namely: First, a group that tried to limit the space for judicial (judicial restraint); Second, the group looked at judicial activism as a sine non qou of court a free and independent; and Third , the moderate group who willed that judicial activism is limited to cases of selective and exclusive, especially regarding the protection of the weak or the minority.

Like a drug injection with the appropriate dose, judicial activism can be an appropriate step in maintaining the system of constitutional democracy. On the other hand, if too much of it has the potential to cause counter-productive. Herein lies the concern some who see judicial activism can be metamorphosed any adventure as a mere judicial (judicial adventurism) or the expansion of the judicial (judicial expansionism).

But in reality, the trend of judicial activism remains a color monitor and esential the wheels of government running. Thus, judicial activism and judicial self-restraint should not have placed as conflicting dogmas, because they are a crucial component in the functioning of the judicial power. Any unification of the law school of thought that vary, such as the flow of positivist, traditional, or progressive, should be maintained because it has more shall the value of each in the nuances of "battle" on the legal considerations when designing a court decision.

Practice Judicial Review

In a government that upholds the principles of democracy and nomokrasi under the umbrella of the constitution, the court is the guardian and protector of basic rights of citizens. Associated with it, the rule of law and judicial review of the basic features of a constitution which must be dilakoni. John Marshall was the first time practicing judicial activism as judicial review mechanism introduced in 1803 in the case of Marbury vs.. Madison by saying, "Our is a Government of laws and not of men". Activism is then kept rolling after the introduction of Hamilton and Jefferson's opinion in The Federalist (1837).

Until now, the practice of judicial review is often a touch of rampant judicial activism occurred in foreign countries, such as in the United States, Germany, Australia, India, Korea, and South Africa. For example, in the case of Brown vs.. Board of Education (1954), U.S. Supreme Court has changed the total direction of two previous decisions in the Dred Scott case (1857) and Plessy v. Ferguson (1896) by declaring that racial segregation in education to be unconstitutional. In exercising its functions, the judge is thinking natural adapt to social changes that continue to grow, so sometimes necessary penyampingan legal formalism and more consideration "requirement of constitutionalism" (Banerjea, 2002).

Meanwhile, conscious or not, Indonesia itself has practiced judicial activism when maintaining the principles and basic rights in the constitution. In the last five years, some of the decision of the Constitutional Court at least has demonstrated this tendency, which first began with the constitutional jurisprudence of the conditional (conditionally constitutional) of the Act SDA (2005), and four times to "constitutional pressure" (constitutional pressures) to fulfillment of obligations 20% budget for education (2005-2008), to declare a paradigm shift from procedural justice to substantive justice that became the basis of command and the vote counting re-election in East Java and some other areas (2009).

Activism will not be forgotten is the loading of the technical provisions in the verdict as a prerequisite for running the provisions of the law so as not to conflict with the constitution. This example can be found in a judicial review of decisions regarding permissibility of the use of ID card and procedures for calculating the second stage seats at the last election in 2009. It should be recognized that the technical decision was so impressed beyond authority possessed in the context of separation of powers. However, judicial activism is in fact welcomed and well received not only by individuals, academics, activists or the law, but also by the Government, Parliament, Political Parties, Elections Commission, National Human Rights Commission, and other institutions.

Thus, the Indonesian people so far can be said to accept the presence of judicial activism as an alternative solution when the law was put in the condition of constitutional protection vis-a-vis the absence or powerlessness of law rules (constitutional lawlessness). In the system of constitutional democracy, judicial review and judicial activism is believed to have become an integral part in the field of constitutional law. However, the excessive enthusiasm can lead to an unhealthy climate for the growth of democracy itself. To keep it, then the judicial activism should always be accompanied with a constructive academic kritisasi, so that the court will not lose its legitimacy.

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