Chief Justice: “Law Cannot Stand without Political Power”
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Chief Justice of the Constitutional Court, Moh. Mahfud MD when giving a lecture in the National Resilience Institution (Lemhanas), Monday (28/3) at the Lemhanas Building, Jakarta.


Jakarta, MKOnline - “We cannot enforce law without political power. In whatever religious teaching, people are taught to do politics. So that, everyone will strive to enforce justice, will be independent and their rights are free from occupancy, all of those things are politics,” revealed the Chief Justice of The Constitutional Court (The Court), Mahfud MD when giving a lecture to the participants in Lemhanas – Indonesian Resilience Institute – Monday (28/3) afternoon at Lemhanas Building, Jakarta.

Mahfud said that politics had two layers, the high politics and low politics. High politics could be in form of inspiration; for example, leaders had to be fair, honest, democratic and so on. Meanwhile low politics meant politics in practice; for example the supporting behavior from certain political parties and so on.

 “High Politics is usually put in the constitution, then the lower level of politics is the everyday players in politics, everyone can join whatever political party,” Mahfud pointed out.
 
Mahfud continued that since the independence of Indonesia, it had been set that the country was built as a country with people sovereignty (democracy) and a constitutional state (nomocracy). Democracy and nomocracy was two inseparable things.

 “Because politics and law is the two sides of a coin, we cannot call Indonesia as a democratic country; but a democratic and nomocratic country. The two things are united but they are different. Democracy is based on power, victory. Law is based on truth. In democracy, we surely talks about winning or losing. But in law, we definitely talks about right or wrong,” explained Mahfud in detail.

Mahfud took as an example that the session for reading the decision of Act on Education Legal Entity (BHP) review, according to democracy it is right because in making the act, it has been approved by the Parliament. But, in reality, said Mahfud, Act on BHP is wrong if it is seen from the aspect of nomocracy because it is against the 1945 Constitution.

 “There has been a forced uniformity, a transfer of responsibility from the state to the people about education; some says that it is neo-liberalism and others,” commented Mahfud on the BHP Act.
 
Hence, continued Mahfud, the state had to follow the law and upheld it at the same time. So the logical framework was that the state was born and formed to protect human rights. That became the concept of a modern country. “Indonesia since the beginning had chosen to be a constitutional state. Therefore, constitutional supremacy had been stressed on by the founding fathers as something very important since the beginning of the independence,” explained Mahfud.

After that, continued Mahfud, Indonesian people even strengthened the constitutional supremacy by creating a new paragraph in Article 1 of the 1945 Constitution. The article stated “Sovereginty is in the hand of the people and executed accordingly to the Constitution.” Then there was also addition in paragraph 3 of the article stating that, “Indonesia is a constitutional state.”

 “The addition to paragraph 3 did not exist in the past but can be found in the Explanation to the Constitution. So, starting from 1999, we no longer had Explanation. Why? The reason is that it is not common in the world for a constitution to have an explanation. What needs an explanation is a common act,” concluded Mahfud. (Nano Tresna A./mh/YDJ) 


Monday, March 28, 2011 | 21:34 WIB 272