There are three concepts or ideas presented by Friedman in building law or the constitution, the concept of substance, the concept of structure, and the concept of culture. According to Chief Justice Moh. Mahfud MD, from the point of substance, which is owned by the laws of Indonesia, is finished or perfect enough. It thus proved, the rule of law emerging from earlier actually already exist in Indonesian law.
For example, Mahfud said, since the first nation Indonesia has said Indonesia is a country of laws. However, the 1945 Constitution was only mentioned in the explanation (rechtsstaat). In the Preamble of the 1945 Constitution already says that Indonesia under the constitution. The Constitution is the highest expression of a state of law. "So the matter is not at issue," said Mahfud the Expert Panel Discussion Event Fifth Series, entitled "Law, Justice, and Social Order" organized by the Central Leadership Scholar Association NU (ISNU), in the Office of the Board of NU, Jakarta, Friday (9/10).
However, Mahfud said again, still there are people who say why word of law is the explanation. According to him, the rechtsstaat term in law also creates problems. Because, rechtsstaat itself have legal concept born from the civil law tradition. Where, civil law itself has meaning to written law in the Act (the Act). "So it says right under the law and in accordance with the Act, that rechtsstaat," he said.
But there is another concept of state law, called the rule of law. According to Mahfud, between rechtsstaat with the rule of law have different terms. The rule of law is a legal system derived from the traditional powers of judges, and did not actually come from the law. "The judge made law, no laws," he said.
It is said Mahfud again, there is a debate regarding the rule of law and rechtsstaat. So when the 1945 amendment, it was one of those who proposed the law of the country says explanation put into the trunk of the 1945 Constitution. "So in the 1945 Constitution does not exist anymore or rechtsstaat word is out," he explained.
Judges Do not fettered
The reason for such a case is removed, Mahfud continue in his presentation, in order to incorporate the concept into the concept of law prism. Thus, the good things of rechtsstaat want clarity in which rules can be combined with the fairness of a judge to decide. Such case, further Mahfud, called progressive law in the Constitutional Court. That is, the law is not only seen as partial, but also seen in a comprehensive manner.
"Judges should not be shackled by the existing clause in the law," he explained. "Because when it becomes law article, the article is actually dead," said the former Minister of Justice under President Gus Dur.
What so-called code of laws, clearly Mahfud, not an article of Law but the pulse of a society that has always voiced justice. "That’s the law," he said. And the Constitutional Court, said Mahfud, develop progressive law firm and has stated in its decision. More than that, he said, the judge has jurisdiction progressive constitution in the sense that all the laws are written is true and that the judge would be bound.
"Because of legal certainty it is important to uphold justice. But in matters of the law can not give you a sense of justice, the judge may make the decision themselves. It was made by the Constitutional Court, "said the Chairman of the Constitutional Court.
Mahfud was accompanied by Chairman ISNU Ali Masykur Musa, and two other sources, namely Refly Harun and legal observers from the Institute for Policy Research and Advocacy (Elsam) Wahyudi Djafar. Present also dozens ISNU figures, along with a number of media, both electronic and print. (Shohibul Umam / mh/Yazid.tr).
Friday, November 09, 2012 | 16:34 WIB 173