Constitutional Justice Enny Nurbaningsih speaking at a Training on the Analysis of Formulation of Legislation organized by the Education and Training Center of the Ministry of the State Secretariat, Friday (25/9) in Jakarta. Photo by Humas MK/Ifa.
JAKARTA, Public Relations of the Constitutional Court—Constitutional Justice Enny Nurbaningsih spoke at a virtual Training on the Analysis of Formulation of Legislation organized by the Education and Training Center of the Ministry of the State Secretariat on Friday, September 25, 2020. She started her presentation by talking about the politics of law in Indonesia, which determines the direction of legal and statutory policies in order to carry out legal reform towards the ideals of the law. The position of the politics of law in Indonesia is still being debated among experts.
"Is it under the legal field or in political science? This is still a debate and there is no unified opinion. So far, we only understand the law as the provisions of the norms themselves but we do not understand why the norms were formed, what the background for the norms was, and whether the norms are needed by society," she said in her presentation about "The Function and Role of Legal Politics in the Formation of Legislation."
Justice Enny said in the debate regarding political law, those who study constitutional law generally study positive law more, but legal expert Belinfante says otherwise. A study constitutional law not cover positive law but also other influential factors beyond the positive law, such as legal politics. Therefore, Belifante puts the study of political law as part of constitutional law.
Legal expert Moh. Mahfud MD also emphasized that legal politics is a part of constitutional law studies. He believes studying politics also means studying legal policies. By studying legal politics, one will understand the political struggles that lead to the formation of laws with the assumption that the law is a political product. He also said the study of political law includes studying how the law works in practice.
Justice Enny said the interesting view of the national figure Mochtar Kusumaatmadja on the formation of laws, which has been around for quite some time, was highly relevant for discussion. Many people only talk about the law in a normative way, and sometimes don’t really understand it because it turns out there are several factors that greatly influence how the law is formed.
Meanwhile, legal expert Satjipto Rahardjo, she Enny, observed the sociological aspect of the law. He strongly emphasized that legal studies cannot side only with normative provisions. If one only understands normative provisions, one cannot understand other aspects that can give meaning to how the law should be formed. Therefore, it is necessary to understand the sociological aspects in the formation of the law.
"My senior Sunaryati Hartono, who was once the Head of the National Law Development Agency, often discusses with me our concerns about the current state of law in Indonesia. Until now, there are still concerns about the actual formation of laws that our society needs. That’s where legal politics is needed as it is a means, a tool, that we can use to create a desired national legal system to fulfill our legal ideals," said Justice Enny.
The lady justice also revealed that until now there have been around 400 products of legislation in Indonesia from the Dutch colonial era that are still in force, for example, the Criminal Code (KUHP), which has undergone revisions. However, ironically, the Criminal Code has a lot of translated versions, for which there is no official one yet. There are differences between one version and another. Besides that, various legal products, such as nuisance permit, have yet to be revoked. These facts, she said, needs a policy direction, one of which is by designing the legal politics to be applied to solve various issues.
"That is why in designing legal development, we are faced with the undeniable fact that the law is a political product. As a political product, [whether we] like it or not, law formation cannot be understood only through a normative perspective. Then struggles arise, especially when forming the law in a repressive authoritarian regime. When the formation of the law in a democratic regime is responsive. But this is not an absolute pattern," she said.
According to Justice Enny, law formation in Indonesia cannot be separated from political institutions, which play an important role in determining what will be regulated as part of legal provisions. “For example, a House member proposed a music bill, which led to debates. It is interesting because as a recommendation from constituents, does it represent the society’s interest as a whole or only of a certain group? The substance of said bill is more about copyright while we have a Copyright Law,” Justice Enny said.
She then explained the national legal system in Indonesia and its elements serves to anticipate and overcome problems that arise in the life of the nation, state, and society, pursuant to Law No. 12 of 2011 on the Formation of Legislation. The national legal system is related to applicable law, not only written laws but also unwritten laws. For example, the natural resource management bill, which is being pushed. Many non-government organizations (NGOs) want to participate in overseeing the formation of the law.
"It should be noted that when a bill is pushed as a priority, it is closely related to the rights of indigenous peoples. This is a very delicate matter. What law is it based on? In terms of natural resource management, many sectoral laws cover it. These kinds of things must be resolved so that the Natural Resource Law can solve various kinds of problems," she added.
Justice Enny said currently some laws aren’t sustainable in that they cannot solve all issues in the required period, but instead lead to new issues. This can happen because the formation process didn’t involve relevant stakeholders, or that the involvement was very formal. Apart from that, the high number of laws is an issue that hasn’t been properly addressed. Some regulations should be discontinued while some have to be changed.
Justice Enny explained that in the national legal system there are the State Policy Guidelines (GBHN), which are delegated to the Five-Year Development Plan (Repelita) and the annual development program. The GBHN aims to carry out legal reform to replace colonial legal products. In the 1960GBHN, there was no development policy direction in the legal sector as it focused on the economic sector. In the 1973 GBHN, legal development became a separate field, and a policy direction was made to improve and reform the national legal system. The 1978 GBHN was a repeat of the 1973 GBHN with additions on human rights and obligations, the State Administrative Court (PTUN) Law, and a legal culture to increase public legal awareness. Meanwhile, the 1983 GBHN sought to improve infrastructure and facilities in legal development, with an emphasis on legal counseling.
Writer: Nano Tresna Arfana
Editor: Nur R.
Translator: Yuniar Widiastuti (NL)
Translation uploaded on 10/06/2020 20:28 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.
Sunday, September 27, 2020 | 14:03 WIB 284