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Chief Justice Anwar Usman delivering a keynote speech at an event in Jember, Sunday (24/1/2021). Photo by Humas MK/Hendy.

JAKARTA, Public Relations of the Constitutional Court—The Hanns Seidel Foundation (HSF) held a workshop on “The Preparation of the Case Law of the Constitutional Court Regarding the Guarantee of Public Participation in Various Laws” in collaboration with the Center for Pancasila and Constitutional Studies (PUSKAPSI) of the University of Jember. The online event was attended by the rector of the University of Jember Iwan Taruna and the Director of Litigation of the Ministry of Law and Human Rights Widodo Ekatjahjana.

At the workshop, Chief Justice of Constitutional Court (MK) Anwar Usman and Secretary-General M. Guntur Hamzah delivered keynote speeches at the event, which took place on Sunday, January 24, 2021. Justice Anwar expressed his admiration and pride for the organizers of the event, which was aimed at reviewing, collecting, discussing, and publishing the Constitutional Court’s case law in relation to the guarantee of public participation.

Justice Anwar said the event reflected the academia’s responsibility to raise awareness and understanding of the need for public participation and its guarantee in various regulations passed by authorities, especially in laws that the Constitutional Court has decided, of the Constitutional Court’s decisions, and of public participation in lawmaking. All this will significantly impact the efforts to maintain constitutionality.

“This is our concrete [contribution] as citizens in implementing the mandate of the Constitution—to realize a law-based democratic state based on Article 1 of the 1945 Constitution,” he said.

Justice Anwar also said that the preparation of the Constitutional Court’s case law regarding public participation in various laws would provide insight for the readers. Although Indonesia doesn’t follow the stare decisis system (a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case), he added, a case law can become a reference for similar cases in the future. There needs to be an understanding that cases have their own characteristics and that the Court could turn back on its stance in a previous decision because of different reasons and legal considerations.

“Theoretically, the term negara hukum (law-based state) comes from rechtsstaat or the rule of law. However, both have different background and come from different legal traditions,” he said. He said both acknowledge protection of human rights through independent and impartial judiciary although they have different historical and organizational backgrounds.

“Rechtstaat is applied by many continental European countries that rely on the civil law. Meanwhile, the rule of law is applied by countries that follow the Anglo-Saxon legal system, which is based on the common law. In practice, the civil law focuses on administration, while the common law focuses on judicial activities. Furthermore, the rechtsstaat concept prioritizes the wetmatigheid principle, which then forms the rechtmatigheid, while the rule of law prioritizes equality before the law, which gives judges the freedom to create law for the sake of justice,” Justice Anwar explained.

Based on that, Indonesia’s concept of a law-based state applies the principle of legal certainty, which is the main element of rechtsstaat. It also applies the principle of justice from the rule of law, where the law is written and all procedures are applied, but in the context of enforcing justice. In this case, the written law that hinders justice can be disregarded through the creation of new laws by judges.

Concluding his speech, Justice Anwar said that such legal concept means that Indonesia has a distinct legal system based on the nation’s foundation: Pancasila. Such a foundation has been realized in the body of the 1945 Constitution, which is a combination of rechtsstaat and the rule of law.

“Our legal system has its distinct characteristics that takes the good out of rechtsstaat and the rule of law, as well as other legal system that have existed before, such as customary and religious laws,” he said.

Public Participation

Meanwhile, Secretary-General M. Guntur Hamzah said that public participation means that the public’s attention, needs, and values become input in the government’s or a company’s decision-making. This process is a two-way communication aimed at a good decision supported by the public.

Public participation in the government’s decision-making is one of the most important process in a democracy. It is even a legal requirement for decision-making. Many countries in the world, including Indonesia, are committed to ensuring public participation and access to information in decision-making.

Writer: Hendy Prasetya
Editor: Lulu Anjarsari
Translator: Yuniar Widiastuti (Editor: R.A. Indah Apriyanti)

Translation uploaded on 01/25/2021 11:28 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.

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