The decision of constitutional justices: Between juridical considerations and Islamic values in the Indonesian legal system

Authors

  • Saifullah Department of Constitutional Law, Faculty of Sharia, Universitas Islam Negeri Maulana Malik Ibrahim Malang, East Java 65144, Indonesia
  • Ahmad Tholabi Kharlie Department of Family Law, Faculty of Sharia and Law, UIN Syarif Hidayatullah Islamic State University Jakarta, South Tangerang, Banten 15412, Indonesia
  • Aditya Prastian Supriyadi Department of Constitutional Law, Faculty of Sharia, Universitas Islam Negeri Maulana Malik Ibrahim Malang, East Java 65144, Indonesia

Keywords:

constitutional justice decisions, Islamic values, judicial considerations, religious consideration, the Indonesian legal system

Abstract

Decisions of constitutional judges so far only use philosophical, judicial and sociological considerations. These three considerations become the main reference for the judge in the process of extracting legal sources before deciding the case. Post legal decisions often have an impact on injustice felt by the community. In the last 10 years, the decision of the constitutional judge has used the source of Islamic law, having a positive impact on the sense of justice and the level of public trust and the authority of the Constitutional Court. This paper aimed to examine the embodiment, the process of consideration, and legal decisions based on Islamic values that can guarantee justice. The search of the constitutional judge’s decision document with content analysis conducted shows that the embodiment of Islamic values in the constitutional judge’s decision was found explicitly or implicitly. The decision making process
exploring Islamic values has not yet run optimally. This can be due to the reasons of consideration, relevance, and correlation of Islamic legal values to the case decided. The internalization of Islamic values in the decision of the constitutional judge has an impact on the sense of justice and affects the aspects of law enforcement. The process of considering constitutional judges who use philosophical, juridical, and sociological considerations has many weaknesses. Thus, the application of Islamic values can complement the considerations of constitutional judges so that they can be called integrative judges’ decisions.

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Published

12-10-2022

How to Cite

Saifullah, Kharlie, A. T. ., & Supriyadi, A. P. . (2022). The decision of constitutional justices: Between juridical considerations and Islamic values in the Indonesian legal system. Kasetsart Journal of Social Sciences, 43(4), 921–930. Retrieved from https://so04.tci-thaijo.org/index.php/kjss/article/view/261660

Issue

Section

Research articles