75 Years of the Indonesian Rule of Law

Kompas

Saldi Isra

After the amendments to the 1945 Constitution, the Indonesian rule of law is no longer in the search phase. The joint commitment to promote it will benefit all the people who live in the large house called Indonesia.

Ahead of the 58th anniversary of Indonesia’s independence, the late Satjipto Rahardjo began his article with the statement, "On August 17, 1945, the state of Indonesia was born as a new country [...] With the exception of the announcement of the form of a state, Indonesia also declared itself as a state based on [the rule of ] law.”(Kompas, 11/8/2003).

In the commemoration of three-quarters of a century of Indonesia\'s independence, this statement can be continued with the questions: Is the idea of a "rule of law" the subject of discussion and the deep struggle of the drafters of the Constitution of an independent Indonesia? What is the portrait of the rule of law after 75 years of Indonesian independence?

The two "simple" questions are interestingly explained by tracing the ideas and developments of the judicial power in the historical development of the Indonesian Constitution. However, within certain limits, the tiring journey of building an independent judicial power can also be used as binoculars in tracing the Indonesian rule of law.

Also read : Rule of Law: Hard Work Needed

The debate of the founders of the nation when formulating the 1945 Constitution at the end of Japanese rule, both at the Preparatory Body for Indonesian Independence (BPUPK) and the Preparatory Committee for Indonesian Independence (PPKI), can be said to be a concrete effort in the process of the initial search and formulation of the state of modern Indonesia. Apart from the foundation of the state, the design of the constitutional structure of the independent Indonesia, including the judicial power, was a central issue for the discussion.

Referring to the discussion proceedings of the 1945 Constitution written by RM AB Kusuma (2009: 364), the first mention of "rule of law" was made when Soepomo conveyed the conclusion of the government system in the draft Constitution, at the BPUPK General Meeting on July 15, 1945.

Kompas/Wawan H Prabowo

Vice President Ma\'ruf Amin gave a virtual speech at the 2020 Constitution Day Commemoration which was held at the Nusantara IV building, Parliament Complex, Jakarta, Tuesday (18/8/2020).

Soepomo argued, "The draft Constitution calls for the supremacy of law. This means wanting a state based on rechtsstaat [law], not a state based on machtsstaat [power].”

Confirming the intended intention, Soepomo added, "The system of constitutional governance. This means that the government is based on the constitution [basic law], not a government that has an absolutism nature [unlimited power].”

Even though it had appeared during the discussion, the rule of law never became the formulation of norms in the draft 1945 Constitution made by the BPUPK. Even, when the BPUPK\'s duties ended and the discussion of the draft Constitution was continued by the PPKI, the latter never touched the issue of rule of law. In its subsequent development, the formulation of the rule of law only became part of the basic law when the 1945 Constitution and its explanations were published in the News of Republic of Indonesia Year II No. 7, Feb. 15, 1946. Apart from the debate about and around the explanation of the 1945 Constitution, among its substances was the statement signifying "Indonesia is a country which is based on rechtsstaat.”

Also read : Not All Laws In Line With 1945 Constitution

The affirmation of "Indonesia is a state based on law" in the Explanation of the 1945 Constitution is far from sufficient to trace the type of the Indonesian rule of law. For example, when Soepomo said a rule of law that was matched with rechtsstaat, whether the type of rule of law to be materialized, was the rechtsstaat type or the type of rule of law. The two have differences, both in concept and background.

In the doctrinaire term, rechtsstaat is based on the continental legal system (civil law), which prioritizes written law and develops in a revolutionary manner. Meanwhile, the rule of law is supported by a common law system that relies on jurisprudence and grows evolutionarily. It is possible that because in the pre-independence era the Indonesian law was increasingly influenced by the civil law tradition, and the term being used came from countries that adhered to civil law, there was the general opinion that the constitution created by the nation\'s founders produced a state law of the rechtsstaat type. However, the results of tracing the proceedings show that the original intent of the formulators of the 1945 Constitution was not found that explicitly stated that the type of the Indonesian rule of law was rechtsstaat.

Even if the original intent was not found, the founders of the nation have provided an important foothold in building the rule of law. At least, the presence of the Explanation of Articles 24 and 25 of the 1945 Constitution has written down one of the fundamental principles of the rule of law, namely the recognition of an independent judicial power. The recognition of the importance of the independence of the judiciary is also the foundation of Montesquieu\'s The Spirit of Laws. For Montesquieu, when judicial power is combined with legislative power, arbitrary regulations will be born because the judges are also the makers of the laws. Likewise, when combined with the executive, judges can become oppressors.

Also read : Judicial Review Planned Against New KPK Law

KOMPAS/RIZA FATHONI

A number of sympathizers participated in the Bhinneka Tunggal Ika parade which took place from the Arjuna Wijaya Horse Statue in Jalan Medan Merdeka Selatan, Jakarta, to Tugu Tani, Menteng, Saturday (19/11/2016).

Executive intervention

Compared to the 1945 Constitution, the 1949 RIS Constitution and the 1950 Provisional Constitution explicitly state the rule of law. It is written down in Article 1 (1) of the two constitutions: "The independent and sovereign Indonesia is a constitutional state.”

Not different from the 1945 Constitution, regarding the relationship among the branches of state power, the 1949 RIS Constitution and the 1950 Provisional Constitution did not make a design of the relationship of the highest judicial power holder (Supreme Court/MA) with other state powers. In the end, the independence of the judicial power becomes blurred, so that it is easy to be pulled into support for other powers, especially the executive power. Practices under the 1959 Provisional Constitution, MA was subordinated to the government. Even, in many state agendas, the head of the Supreme Court was given equal status with members of House of Representatives.

After returning to the 1945 Constitution with Presidential Decree on July 5, 1959, the positioning of the head of the Supreme Court as part of the executive continued. When the Dwikora Cabinet was formed, all state institutions were positioned as tools of the revolution, including the Supreme Court. Referring to the records of the Institute for Judicial Independence Studies and Advocacy (LeIP, 2016), the peak of intervention in judicial power was when the chief justice of the Supreme Court became the legal and home affairs compartment coordinating minister during the Dwikora Cabinet. Even, long before that, referring to the results of LeIP\'s investigation, in the 1960 MPRS (Provisional People\'s Consultative Assembly) session, affirmations began to appear to end the doctrine of separation of powers.

By law, real intervention on independent judicial power is legitimized by Law No. 19/1964 on the basic provisions of judicial power. This law emphasized that the court judged according to law as a tool of revolution based on Pancasila toward a socialist Indonesian society. Not only that, on the grounds in the interests of the revolution, the president can intervene in court matters. Post-Law No. 19/1964, the judicial power was placed as an independent power in Law No. 14/1970. However, independence was only limited to the technical implementation of the judiciary.

Another problem that was no less fundamental in the design of the independent judicial power, namely the authority in the organizational, administrative and financial fields, was that the judiciary was not held by the Supreme Court but remained under the executive, in casu of each department. Therefore, Sebastian Pompe in The Indonesian Supreme Court: A Study of Institutional Collapse (2005) stated, during the New Order, especially 1970-1985, there was extraordinary political cooptation of the judicial power.

If linked with Montesquieu\'s opinion, within the limits of reasonable reasoning, the empirical stretch above becomes a real action to attract judicial power into the executive realm. As confirmed by the People’s Consultative Assembly (MPR) Decree No. X /MPR/1998, the development of the judicial institution by the executive provides opportunities for the authorities to intervene in the judicial process and the development of collusion and negative practices in the judicial process. Therefore, it must be strictly separated between the judicial function and the executive function. Not only from the executive, it becomes a necessity to separate the judicial power from all existing branches of power.

The spirit of separating judicial power as part of the strategy to build the rule of law as stipulated in the MPR Decree No. X/MPR/1998 is outlined in Law No. 35/1999. As a revision of Law No. 14/1970, the substance of Law No. 35/1999 basically emphasizes that the organizational, financial and administrative affairs of the court must be under the Supreme Court. However, regulations at the statutory level are far from sufficient. Therefore, in line with constitutional reform, the choice to affirm an independent judicial power in the constitution is the best way. The arrangement of judicial power becomes a strategic way to strengthen the constitutional basis of the Indonesian rule of law.

Constitutional reform

Tracing back to the treatise, of all the substance of the amendments to the 1945 Constitution, the discussion regarding the rule of law becomes one of the crucial issues. The discussion is increasingly strategic because it is related to efforts to restructure the judicial power in the state power structure. Moreover, when the MPR agreed to abolish the explanation of the 1945 Constitution and move normative matters in the explanation to constitutional norms. One of the explanatory substances that has been appointed as the constitutional norm: "Indonesia is a state based rechtsstaat.”

Due to the absence of haste, like the formulation of the Constitution by the founders of the nation, discussions regarding the rule of law have started since the first amendment (1999) and ended in the third amendment (2001). During that time, the amenders to the 1945 Constitution discussed all aspects related to the rule of law. Even though it was finally normalized with, "The State of Indonesia is a State of Law", in order to arrive at this norm, the amenders of the 1945 Constitution have explained several issues that could serve as original intent in observing the Indonesian rule of law.

First, the amenders of the Constitution do not differentiate between the type of rule of law over rechtsstaat and the rule of law. This means that what is meant is the constitutional state of Indonesia, which includes rechtsstaat and the rule of law. Because it covers rechtsstaat and the rule of law, the characteristics of the Indonesian rule of law is broader. Among the characteristics that is almost always emphasized by the amenders of the Constitution is the guarantee and respect for human rights, independent judicial power and the limitation of state power so as to support the building of a democracy based on law (constitutional democratic state).

Kompas/Wawan H Prabowo

The Constitutional Court (MK) held a judicial review of Law Number 7 of 2017 concerning Elections and Law Number 10 of 2016 concerning the Election of Governors, Regents and Mayors to Become Law (Pilkada) at the Constitutional Court Building, Jakarta, Wednesday ( 26/2/2019)

Second, Indonesia is a democratic law state. When read carefully, the proceedings of the amendments to the 1945 Constitution, in casu discussing the rule of law during the Third Amendment period, some members of the MPR Ad Hoc Committee (PAH) put special emphasis on "a democratic rule of law". Moving on from the experiences, prior to the reformation, the rule of law had received recognition but was not built and implemented in democratic ways. So important was the meaning of the word "democratic", some of them wanted the norms in the constitution to explicitly include "a democratic rule of law". Although in the end it was not included, the provisions of Article 1 (3) of the amended 1945 Constitution must not neglect the meaning of "a democratic constitutional state".

Third, adhering to the principle of the supremacy of law and constitutional system that leads to a constitutional democracy system. In a simpler term, constitutional democracy is a government in which political power is limited in such a way by the constitution/UUD. This view is in line with the purpose of forming a constitution as an instrument to limit power. Since the beginning it was believed by the amenders of the Constitution, the power without the limitation tended to be abused.

Promoting the rule of law

Among the objectives of amendment to the 1945 Constitution is to improve the basic rules regarding human rights guarantee and protection in accordance with the development of human rights understanding and human civilization, which are at the same time a requirement for a constitutional state that the 1945 Constitution aspires to. To achieve this, Article 24 (1) of the 1945 Constitution states that the judicial power is an independent power to administer the judiciary in order to uphold law and justice. It is difficult to argue that this regulation is inseparable from the essential meaning of independence of judicial power as the foundation for upholding the rule of law.

It is so important to ensure the independence of judicial power, the 1945 Constitution tries its best to design so that powers outside the judiciary do not easily break through the lines of defense of the judiciary. The process of filling in supreme justice and constitutional justices is arranged in such a way.

Now, after the amendment of the 1945 Constitution, the constitutional state of Indonesia is no longer in the search phase; it has been found.

Regarding guarantees and respect for human rights, the amendments to the 1945 Constitution regulate much more comprehensively than the substance of all constitutions that have been in effect including the 1945 Constitution before the amendment. That way, the judiciary power actors (MA and Constitutional Court/MK) must ensure that actions that ignore human rights will be corrected by the judiciary with the authority of an independent judicial power. Even though in substance the amended UUD 1945 still has weaknesses, when it is put into a rule of law design, it is no longer appropriate to use the reason for the chaotic Indonesian rule of law is because the constitution does not regulate and guarantee the independence of judicial power and human rights. Substantially, the 1945 Constitution has more than sufficiently answered and regulated the two main characteristics of the rule of law in question.

Now, after the amendment of the 1945 Constitution, the constitutional state of Indonesia is no longer in the search phase; it has been found. The rule of law in Indonesia is no longer in the formulation phase; its norm has been completed. In fact, what is needed is to embody the constitutional state of Indonesia so as to benefit all residents of Indonesian great house. If all components of the nation have the same commitment, the days toward Golden Indonesia 2045 will be a journey to reap the sweet fruits of the rule of law.

Saldi Isra, Constitutional Justice of Indonesia, professor of Constitutional Law, School of Law, Andalas University.