Deputy Chief Justice Aswanto speaking at a virtual training and education for paralegals organized by Anak Negeri Legal Aid Institute, Sunday (11/7/2021). Photo by Humas MK/M. Nur.

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Monday, November 8, 2021 | 04:47 WIB

JAKARTA, Public Relations—Deputy Chief Justice of the Constitutional Court (MK) Aswanto spoke at the training and education (diklat) for paralegals Batch IX organized by Anak Negeri Legal Aid Institute on Sunday, November 7, 2021 virtually.

In his presentation, Justice Aswanto said the 1945 Constitution stressed that Indonesia is a rechtsstaat. In its development, it also became a rule of law. “The rule of law and rechtsstaat are the same but philosophically there are fundamental differences [between the two],” he said.

Article 1 paragraph (1) of the 1945 Constitution, he said, stipulates that Indonesia is a unitary state in the form of a republic. As a consequence, sovereignty is in the hand of the people and is implemented according to the Constitution, pursuant to Article 1 paragraph (2).

Justice Aswanto also said that Indonesia is a law-based state, which is stressed in Article 1 paragraph (3). “We are a republic, a unitary state, which is based on law,” he stressed.

He explained that law-based states might be a rule of law or a rechtsstaat. The rule of law is adopted by Anglo-Saxon countries with the common law system. Meanwhile, the rechtsstaat is popular among continental European countries with the civil law system.

“The principle of our law-based state is contained in a sentence in the fourth paragraph [of the Preamble to the Constitution], which reads, ‘National Freedom of Indonesia is prepared in a Constitution of the State of Indonesia….’ The sentence indicates that a free Indonesia will be based on law,” Justice Aswanto said.

1945 Constitution, Supreme Law

Justice Aswanto said that, in this context, the 1945 Constitution is the supreme law of the land. The concept of the law-based state is aimed at forming a state government that aims to protect human rights individually and collectively, which is reflected in the sentence “... protects all Indonesian people and the entire land of Indonesia and to develop the welfare of the people, the life of the nation, and participate in the world orderliness based on freedom, eternal peace and social justice…” as national goals.

He also talked about Pancasila’s role as a margin of appreciation that controls its contextualization and implementation. He believes it is contained in the Preamble to the 1945 Constitution as well as the four stages of the constitutional amendment, the formulation of human rights in the positive law, and when the founding fathers formulated Pancasila.

Justice Aswanto also explained that in Chapter XA of the Constitution, human rights can be divided into several aspects: those in relation to freedom of religion and faith; to freedom of opinion and assembly; to information and communication; to the sense of safety and protection against treatment that degrades human dignity; to social welfare; to equality and justice; and to respecting the rights of others.

Writer        : Utami Argawati
Editor        : Lulu Anjarsari P.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/11/2021 12:26 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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