Salman,Radian, 031070506 (2017) PENGUJIAN UNDANG-UNDANG OLEH MAHKAMAH KONSTITUSI DALAM PERSPEKTIF KONSTITUSIONALISME DAN DEMOKRASI. Disertasi thesis, Airlangga university.

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Abstract

Constitutionalism and democracy are the principles that underlying judicial review by the Constitutional Court. The principle of constitutionalism, especially in institutional or structural approach imposes limits that the decisions of the Constitutional Court should not replace the function of the legislature, and therefore, the function of the Court is as a negative legislator. The principle of democracy put the legislator as an institution that has legitimacy in articulating popular will. In such a context, judicial review is a tension between the legislature and the Constitutional Court as the sole interpreter. This dissertation research focused on three issues; Principles of Constitutionalism and Democracy and its Implication to rule control mechanism; Judicial review by the Constitutional Court as constitutional adjudication according to the principle of constitutionalism and democracy; and proportionality of decisions of the Constitutional Court in judicial review. Using conceptual, statute, historical, case and comparative approaches, this research concluded that: first, the nature of constitutionality review by judiciary is a legislative matter, and is limited by the principles of constitutionalism, especially separation of powers, and principle of democracy. Second, as the main task in judicial review is interpretation activity, it brings the Constitutional Court into model of judicial activism or judicial self-restraint. Judicial activism represented by the use of policy argument in the decision, rulemaking and the tendency to expand the jurisdiction of Constitutional Court. Third, based on the principles of constitutionalism and democracy, decisions of the Constitutional Court in judicial review should create mode of self-limitation within the framework of the principle of separation of powers.

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