Legal Policy in the Decision of the Constitutional Court and the Formation of Law

Abstract

Objective: The purpose of this research is to raise the Criminal Law Act as a hotly debated topic. Some people think that the Constitutional Court should have the courage to make a legal breakthrough on this very important issue. However, the Constitutional Court judges are of the opinion that expanding the meaning of adultery is not within their jurisdiction. This research aims to examine further the legal arguments of the Constitutional Court's decision which is an open legal policy and its implications for the formation of laws and regulations in Indonesia. Method: The research method used is literature research with a legal approach and case studies of several Constitutional Court decisions which contain open legal policy arguments. Conceptually, this research will also discuss the implications of the Constitutional Court's decision containing the open law policy for the national legislative system. Results: The research results show that first, the concept of open legal policy in Constitutional Court decisions does not yet have clear boundaries so that the meaning of positive legislator and negative legislator is often confused in the practice of forming and reviewing laws. This decision, which is an open legal policy, also shows that there has been a tug-of-war between the judges of the Constitutional Court in using the paradigm of judicial activism and judicial restraints, giving rise to legal uncertainty in society.