Karya Ilmiah

DISERTASI (181) - Pengujian Undang - Undang Oleh Mahkamah Konstitusi Dalam Perspektif Konstitusionalisme dan Demokrasi

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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, rule-
making 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.

Keywords : Judicial Review, Constitutional Court, Constitutionalism, Democracy.

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Ketersediaan

031070506

181

Ruang Disertasi

Tersedia

Informasi Detail

Judul Seri

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No. Panggil

181

Penerbit

Surabaya : Fakultas Hukum Unair., 2017

Deskripsi Fisik

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Bahasa

Indonesia

ISBN/ISSN

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Klasifikasi

NONE

Tipe Isi

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Tipe Media

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Tipe Pembawa

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Edisi

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Subjek

MAHKAMAH KONSTITUSI

Info Detail Spesifik

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Pernyataan Tanggungjawab

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Versi lain/terkait

Lampiran Berkas

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