Irene Angelita Rugian (2020) Prinsip Proporsionalitas Dalam Pengujian Undang-Undang Terhadap Undang-Undang Dasar Negara Republik Indonesia 1945 (Studi Perbandingan Di Indonesia Dan Jerman). Skripsi thesis, UNIVERSITAS AIRLANGGA.

	Text (HALAMAN JUDUL) 1. HALAMAN JUDUL.pdf Download (517kB)
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Abstract

The principle of proportionality is a principle that has been commonly used in the legal area, one of which is in the constitutional law area. It has been used in the constitutional court in several countries. One of the countries that developed the principle of proportionality in the constitutional court is Germany. The principle of proportionality in the area of constitutional law is mostly used for judicial review. In Indonesia, the principle of proportionality has not been popularly and fully used by the constitutional judges at the Mahkamah Konstitusi in judicial review. The principle of proportionality in the constitutional court was introduced as a principle which allow judges to test the norms that are potentially considered to bring harm to the people, so that, the judge will not only interprete the Constitution (the UUD) or usd the section of the Constitution, but give a concrete consideration to the aspect of the damage. The Constitutional court (the MKRI) has introduced the use of the principle of proportionality along with proportionality tests based on legitimate aims, suitability, necessity, and balancing in narrow sense. The research in this bachelor thesis wants to analysis two issues; first, the principle of proportionality in the judicial review by the constitutional court; and second, the comparison of the principle of proportionality in the judicial review between the constitutional court of the Republic of Indonesia and the Germany federal constitutional court (bundesverfassungsgericht). In analyzing the two issues, the research in this thesis uses the following methods, namely: statute approach, case approach, comparative approach and conceptual appoach with the type of reform oriented research. From the analysis using those methods, this thesis ended up with the conclusion. The principle of proportionality is a test tool which may help judges in giving legal considerations when dealing with the rights of the competiting rights, limitation clause, and open legal policy. In the context of comparative between Indonesia and Germany, the principle of proportionality in Germany is more developed as to judicial practices and experiences of the constitution, concepts, and theory. Whereas in Indonesia, MKRI has not yet formally adopted and applied the principle of proportionality, especially when the constitutional judges have to decide in the judicial review. Therefore, the principle has not yet been developed both in practice and in theory in Indonesia. In the implementation, the principle of proportionality are relevantly used in the judicial review, especially when it is about the provisions in the constitution which have the characters of open texture and have a consequence of open legal policy.

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