---

Justice Aswanto, law professor of Hasanuddin University, speaking at a national webinar organized by the central executive body of the South Sulawesi Family Association (BPP KKSS), Saturday (14/11/2020) from Jakarta. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—There are two concepts of a law-based state such as Indonesia. First, that which developed in Anglo-Saxon countries: the common law system. Second, the concept of rechtsstaat popular in continental European countries: the civil law system. “Actually, these two principles are broadly the same, although there are differences [between them]. However, in principle, when talking about the rule of law and a rechtsstaat, we understand that there are basic elements that must be met so that a country can be said to be a rule of law or a rechtsstaat,” said Deputy Chief Justice Aswanto, law professor of Hasanuddin University, at a national webinar on “The Role of KKSS Legal Practitioners in Law Enforcement in Indonesia.” The webinar, organized by the central executive body of the South Sulawesi Family Association (BPP KKSS), took place on Saturday afternoon, November 14, 2020.

Justice Aswanto then explained four requirements for a law-based state, first of which is respect for human rights. Jurist Julius Stahl, he said, believed a rechtsstaat must uphold human rights. Indonesia has had three constitutions: the 1945 Constitution, the Constitution of the Republic of the United States of Indonesia (RIS) in 1949, and the Provisional Constitution of 1950 (UUDS 1950). The earliest form of the 1945 Constitution, he added, hadn’t completely guaranteed human rights, so hadn’t the Constitution of RIS. The first form of Indonesia’s constitution that did so was the Provisional Constitution of 1950. After the 1945 Constitution was amended, human rights were guaranteed more comprehensively.

Second, Justice Aswanto said, a law-based state must separate its powers. The 1945 Constitution stresses that the legislative power is vested in the House of Representatives (DPR), which creates laws alongside the government. Then, there is the executive power, which is vested in the government, which has legislative authority to make laws alongside the House. Then, Article 24 of the 1945 Constitution regulates that the judicial power is vested in the judiciary—the Constitutional Court, the Supreme Court, and the courts under the Supreme Court.

The third requirement for a law-based state, he said, is the laws. He added, “Only laws can negate human rights, although philosophically, some human rights cannot be put aside.” He said the fourth condition for a law-based state is independent judiciary.

He also said that according to jurist A. V. Dicey, in a law-based state, the law must first have supremacy and be above everything. It is not development over law, but law over development. Second, for a law-based state, there must be equality before the law, where all citizens can take part in law and government without exception. Third, in law-based state there must be a legal process, a judicial process that is just, as the embodiment of all the people.

Constitutional Court’s Authorities and Obligation 

Justice Aswanto then explained the positions of high state institutions in Indonesia after the amendment to the 1945 Constitution in 1999-2002, in which the People’s Consultative Assembly (MPR) is no longer the highest state institution. High state institutions—the People’s Consultative Assembly (MPR), the House of Representatives (DPR), the president, the Constitutional Court (MK), the Supreme Court (MA), the Judicial Commission (KY), etc.—were made equal. However, the General Elections Commission (KPU) was written in lowercase in the 1945 Constitution because its name could be changed at any time.

He also said that the Constitutional Court was established in August 13, 2003 as a result of the 1998 Reform. It serves as the protector of the citizens’ constitutional rights, which are laid in the 1945 Constitution. It is also said to be the guardian and final interpreter of the Constitution, the guardian of democracy, and the protector of human rights.

Justice Aswanto then talked about Article 24C paragraph (1) of the 1945 Constitution on the Constitutional Court’s authorities to review laws against the 1945 Constitution, to decide on authority disputes between state institutions, to decide on the dissolution of political parties, and to decide on disputes over general election results. Article 24C paragraph (2) of the 1945 Constitution stipulates that the Court is obligated to decide on the House’s opinion on an alleged violation of law or disgraceful act committed by the president and/or vice president.

At first, regional head election (pilkada) dispute resolution was carried out by the Supreme Court, then pilkada disputes were relegated to the regency/city high courts while it kept with the provincial disputes. However, after long discussions, pilkada dispute resolution was transferred to the Constitutional Court, which then passed a ruling that it wasn’t authorized to do so.

“But why the [Constitutional] Court still handles it? It’s because of a clause in the decision, that the one authorized [to do so] is a special judicial body, but until this body hasn’t been formed, [it is] still within the Constitutional Court’s authority,” he stressed.

Writer: Nano Tresna A.
Editor: Lulu Anjarsari
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 11/19/2020 16:28 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.

---