Constitutional Democracy

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.
Published by: Indonesian Constitutional Law 2007.

DEMOCRACY has become a very exalted terms in the history of human thinking about the socio-political order of the ideal [1]. In this modern era, almost all the countries claiming to be adherents understand democracy. as is known from studies of Amos J. Peaslee in 1950, from 83 the Constitution states - diperbandingkannya countries, 74 countries have officially adopted its constitution the principle of popular sovereignty (90%) [2]. Democracy (UK: Democracy) in the language comes from the Greek, namely Demokratia.

Demos means the people (people) and cratos means government or authority (rule). Democracy means implies a political system where the people hold the supreme power, not power by the king or the nobility. The concept of democracy has long been debated. In ancient Greece, democracy as an idea and the political order has become the attention of state thinkers. There are pros and some cons. Plato (429-437 BC) [3] and Aristotle (384-322 BC) [4] do not believe in democracy and democracy as a form of putting a bad government. This famous Filusuf more faith in the monarchy, the rulers wise and attention to the fate of his people. Plato can accept democracy, if a country does not have the Constitution, while Aristotle in the format Politea country, namely democracy with the Constitution or the nature of modern democracy. [5]

In the 16th century, the rationale kings rule the absolute shift in the nature of worldly Illahiah be returned. This was preceded by the resistance of the monarchomacha against the king and the church in the medieval period. Their thinking is based on doubts about the assumption that the kings and the church can not be done arbitrary. In the year 1579 published a book entitled Contra Vindiciae Tyrannos, which then considered the first major book of the Monarchomacha. This book is the principle of popular sovereignty and stated that although the king chosen by God, but he was appointed by consent of the governed. No one is born a king, could not have someone to be king without a people. The emergence of this idea because of the arbitrariness that is happening at that time.

With this in mind, religious concepts that had been used as a basis, is now shifted to worldly concepts. As a result of the defenders of state authority must use the principles of worldly well to deny the thoughts expressed by the monarchomacha, among them was Hugo Grotius (1583-1645M) and Thomas Hobbes (1588-1679M). They no longer use religion as a justification for greater state power, although they say that if the big powers not given to the state, the community will be chaotic. They acknowledged that the state's power comes from the people, but power is given precisely for the interests of the people themselves.

This opinion was later challenged by John Locke (1632-1704 AD) [6], which also departed from the primitive society arguments before the state. But for Locke is not so chaotic society, even that's an ideal society, because the basic rights of human beings are not dilangggar. Thinking Locke was recognized as the most influential thinking on the idea of popular sovereignty. Locke's book titled Two Treaties of Government states that all legitimate government rests on the "consent of the governed". With his statement about the law of nature, Locke argued that government recognition, which in their time under the authority of the church, is an aspect of Divine series. Natural law is identical with God's law and guarantee the basic rights of all people. To secure these rights, people in civil society have a "social contract" with the government. [7]

Thinking Locke was later developed by Charles Louis de Secondat Baron de la Brede et de la Montesquieu (1689-1755M), in his work the spirit of the law / L'Espirit des Lois (Soul of Law), book XI, chapter 6 of of the Constitution of England (British constitution) states in Every government there are three sort of power; the legislature; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law [ 8]. (In every government there are three power, legislative power, executive power than matters relating to the law among nations, and judicial powers relating to legal matters for citizens). The concept of division of powers into three centers of power by Immanuel Kant (1724-1804M) and then given the name Trias Politica (Tri = three; As = axis (center); Politika = power) [9]. With this separation of powers, would be guaranteed freedom of legislation by the parliament, the implementation of laws by the judiciary, and the implementation of the state work day-to-day by the government.

Etymologically, democracy (democratic) is a form of government or the supreme power of the state, where the source of supreme power is the power (to) people (an) which accumulated through the assembly called the People's Assembly Pemusyawaratan (die gesamte staatsgewalt liegt allein bei der assembly). [ 10] The Sri Soemantri Indonesia defines democracy in terms of formal (indirect democracy) as a democracy in which the implementation of popular sovereignty was not carried out by the people directly but through representative institutions like Parliament and the people's Assembly; and democracy in the sense view of life according to Sri Soemantri is democracy as a philosophy of life (democracy in philosophy). [11]

Democracy has a sense of ambiguity and not single. [12] Each country can claim as a democratic state. Countries like the United States, referred to as a democratic state, including former communist countries like the Soviet Union and Eastern European countries. Even the notion of democracy is often manipulated for the sake of ruling elites. With a reason to protect most people, the authorities often oppressive and (or) reduce the rights of the people, to maintain the status quo. This menunjuikkan that has become the choice, of course the best choice among the worst choices available. Each country has different characteristics in applying the ideal of democracy. There are embracing liberal democracy, constitutional monarchy, democracy and social Pancasila democracy. [13]

A state by Amien Rais, called a democratic state if it meets certain criteria, namely: (1) participation in decision making, (2) equality before the law, (3) fair distribution of opinions, (4) the same educational opportunities, ( 5) four kinds of freedom, namely freedom of speech, freedom of newspapers, freedom of assembly and freedom of religion, (6) the availability and transparency of information, (7) fatsoen heed or political etiquette, (8) freedom of individuals, (9) spirit of cooperation and (10) the right to protest. [14] Thus it can be said that democratization means against the monopoly of politicians, officials and technocrats to determine just what is good for society [15].

Robert A. Dahl proposed five criteria for an ideal democracy, namely: (1) equal rights to vote in determining the binding collective decisions, (2) effective participation, ie equal opportunities for all citizens in the process of collective decision making, (3) disclosure truth, namely the existence of equal opportunity for everyone to give an assessment of the political processes and governance logically, (4) final control of the agenda, namely the exclusive power for the people to decide what to do and not have to be decided through a process of governance, including delegate that power to others or the institution representing the communities, and (5) coverage, which included public terliputnya all adults in relation to the law. [16]

Dahl also filed seven indicators for democracy empirically, namely [17]:
1. Control over govermental decitions about policy is constitutionally vested in elected officials;
2. Elected officials are chosen and peacefully removed in Relatively frequent, fair and free election in which coercion is quite limited;
3. Pratically all adults have the right to vote in these elections;
4. Most adults have the right to run for public offices for which candidates run these elections;
5. Citizens have an efectively enforced right to freedom of expression, the conduct of Government, the prevailing political, economy, and social system, and the dominant ideology;
6. They also have acces to alternative sources of information that are not monopolized by the government or any other single group;
7. Finally they have and effectively enforced right to form and join autonomous associations, including political associations, such as political parties and interest groups, that attempt to influence the Government by competing in elections and by other peaceful means. [18]

As a comparison of the indicators proposed by Dahl at the top, the Indonesian political science, [19] after observing democracy in various countries to formulate democracy by using five specific indicators. First; Accountability. In a democracy, every holder of office elected by the people must be accountable for its policies and has been taken to. Not only that, he also must be mempertangungjawabkan words or the words. And last but not least is the behavior in life ever, was, even going to run. Accountability is not only about himself, but also about his family in a broad sense. Child's behavior is his wife, also his relatives, especially those associated with his position. In this context, the incumbent must be willing to face what is called "Public Scrutiny", especially those conducted by the mass media that already exist.

Second; Rotation Powers. In a democracy, an opportunity will occur there must be a rotation of power, and carried out regularly and peacefully. So, not only one person who is always in office, while others closed chance at all. Normally, political parties that won at an election would be given a chance to form a government that controls the executive until the next election. In a country whose democracy is still low, the rotation of power is usually if nothing else, it will only be done in a limited environment in the political elite alone. Third, an open political recruitment. To allow for rotation of power, required a system of open political recruitment. This means that each person is eligible to fill a political office elected by the people have the same chance of doing a competition to fill the position. In countries without democratic, political recruitment is usually done in private. That is, the opportunity to fill a political office held by only a few people.

Fourth general election. In a democratic country, elections held regularly. Every citizen of full age have the right to vote and to be elected and free to use these rights in accordance with the will of conscience. He is free to determine which party or candidate to be supported, there tanp fear or coercion from others. Voters are also free to follow any kind of election activity, including campaign activities and watch the counting of votes. Fifth enjoy basic rights. In a democratic country, every citizen can enjoy the basic rights they freely, including the right to express opinions (freedom of expression), the right to assembly and association (freedom of assembly), and the right to express opinions and used to determine the political prefensi, about an issue, particularly those involving himself and the surrounding community. The right to assembly and freedom of association marked to determine the institution, or any organization that wants him or her select the form.

Alfian defines democracy as a political system [20] who maintain a balance between conflict and consensus. [21] According to the Alfian, democracy provides the tolerance of differences of opinion or conflicts of opinion. Differences or disputes that could be interpreted as a conflict. The conflict here does not lead to confusion of democracy.

One axiom in the political system of democracy is that democracy can not be achieved without the rule of law. Why? The answer of course is not difficult. Democracy which implies the existence of the implementation of basic rights such as rights of expression both oral and written, assembly and association, of course, requires the existence of clear rules and adhered together. Without the existence of a such rules, then the process of implementation of these rights will have many obstacles, because of differences in terms of access, capacity, status, gender, and social class and so on. By using rules that are not biased against individuals or particular groups, they will be able to achieve such a state of equality, namely equality in public, so that each party can participate fully, openly and fairly. To ensure the achievement of such participation, must be poured in a fundamental legal provisions (read; constitution).

Several studies ever conducted by Mahfud MD [22] produces the conclusion that throughout the history of Indonesia has occurred attraction between democratic politics and authoritarian politics. Political democracy and authoritarian always appeared alternately through the political struggle that is sometimes hard. Mahfud explained that in all the authentic text of the constitution that had or were applicable in Indonesia set democracy as a fundamental state principle, but not all of government and political system was born in Indonesia is a democracy, in fact there is a tendency that the style democracy occurs only at the beginning of attendance a regime. Which seems to determine the implementation of democratic principles in a state of life is how democracy is not only mentioned as a principle in the constitution but are strictly elaborated in the constitution itself.
The main purpose of the constitution is to limit the effective implementation of government power so that power is not done arbitrarily. Important goal of the constitution is to protect the basic rights of citizens from abuse of authority by the organizer of power. Both these objectives can be achieved only if the organization of state power does not accumulate in one body or one person. Power must be distributed. With the distribution of power to a few people or institutions, preventing abuse of power. Thus the term constitutionalism appears to indicate a system of basic principles that define and limit the powers and rights of the ruling (in power) and for the ruled.

The discussion is closely related to the constitutional democratic system adopted by a country. Most modern nations now including countries that had achieved independence after World War II has ended since all embracing system of constitutional democracy. Which is characteristic of a constitutional democracy is a government whose power is limited and not dipekenankan arbitrary act against the people. Restrictions are listed in the constitution. In the system of constitutional democracy, state power in the hands of the people. Holders of limited powers authority by the constitution so as not to violate the rights of the people. And executive powers between the branches of other powers are checks and balances. Control of legislative bodies of executive power that is not out of the rails of the constitution.

By the International Commission of Jurist in the conference in Bangkok in 1965, the countries that embrace democratic principles, also called representative government. As for who is the representative government by the International Commission of Jurist is Representative government is a government deriving its power and authority form the people, which the people and authority are Exercised through freely chosen representative and responsible to them. [23]

Then the organization of international legal scholars on the set all the terms of representative government or the principles of democracy in a country, namely [24]:

1. The existence of constitutional protection;
2. The existence of judicial power is independent and impartial tribunal;
3. The existence of free elections;
4. The existence of freedom of expression and association;
5. The existence of opposition tasks and,
6. The existence of civils education. [25]


[1] Hendra Nurtjahjo, Philosophy of Democracy, PSHTN FH UI, Jakarta, 2005. hlm.1.
[2] Amos J. Peaslee, Constitutions of the Nation, Vol. I, Concord, The Rumford Press, New Haven, 1950. pp. 8, terpetik in Jimly Asshiddiqie, the Constitution and constitutionalism Indonesia, Constitutional Press, Jakarta, 2005. hlm.140.
[3] Plato (429-347 BC) was a pupil of Socrates (469-3999 BC), he was born on 29 May 429 BC in Athens. Many produce works of Plato in philosophy, politics and law. Among the famous works are Poletea (of State), Politicos (about Expert State) and Nomoi (the Act), in terpetik JJ. Von Schid, experts Think Big About the State and Law, PT. Development, Jakarta, 1988, pp. 10.
[4] Aristotle (384-322 BC) comes from Stageria. He was a pupil of Plato (429-347 s.M). Many produce works of Aristotle in Philosophy, Logic, Politics, and Law. His work is famous in the Philosophy of Law is bidanhg Ethica and Politica. Terpetik in Budiono Kusumohamidjojo, Philosophy of Law; Problematika Order Fair, Grasindo, Jakarta, 2004, pp. 38.
[5] Haedar Nasir, Ideas and the New Wave of Democracy, in Mahfud MD, et.all, Political Discourse and Democracy Indonesia, Pustaka Pelajar, 1999.
[6] John Locke (1632-1704) was an English filusuf who was born in Wrington on August 29, 1632, and died on October 28, 1704. more information about Autobiography of Locke can be seen in his book Two Treatises of Civil Government, JM Dent and Sons Ltd., London, 1960., P. v-viii.
[7] Miriam Budiardjo, Op-cit, pp. 56.
[8] Montesquieu, The Spirit of the Law, Hafner Press, New York, 1949, pp. 151.
[9] Moh. Mahfud M D, Loc.cit, pp. 74.
[10] Yan Pranadya Puspa, Law Dictionary, Aneka Ilmu, Semarang. First printing 1977. pp. 295.
[11] Sri Soemantri, Comparative Constitutional Law Inter, Alumni Bandung, 1971. pp. 26.
[12] and Fachruddin Saifullah Yusuf Salim, Indonesia's Struggle Developing Democracy, publisher of PP Ansor Youth Movement, first printing, 2000
[13] Indonesia, including countries that have a unique experience in democracy. Starting from liberal democracy, guided democracy, and democracy, the New Order Pancasila democracy until after the New Order. Each have advantages and disadvantages of the more valuable the experience set the foundation in terms of democratic life that can be accepted by all people.
[14] See Amien Rais, Democracy and the Political Process, in Democracy and Political Processes, Series Prisma Jakarta, diterbikan LP3ES, 1986
[15] Frans Magnis Suseno, Power and Moral, Gramedia Pustaka Utama, Jakarta, 2001, pp. 47.
[16] Robert A. Dahl, Pluralist Democracy Dilemma; Between Autonomy and Control, translation by Sahat Simamora, publisher Rajawali Press, Jakarta, 1985
[17] See Afan Gaffar, Political Transition Towards Democracy Indonesia, Pustaka Pelajar Jakarta, 1996. pp. 6-7.
[18] The proposed indicators Dahl, according to Afan Gaffar, can dlihat number pesyaratan whether a political order is a democratic system or not, namely accountability, rotation of power, political recruitment that is open, elections, and to enjoy basic rights . (Afan Gaffar, Ibid, pp. 8)
[19] See Affan Gaffar 1998; Melian 2000; Soemantri 1971; Budiardjo 1996
[20] According to Gabriele A. Almond, as quoted in his book Rusandi Sumintapura Political System in Indonesia, (New Sinar, 1988: 8), the political system is "... the political system is that the system of interaction of several found in all independent societies, which performs the function of intergration and adaptattion (both internally and vis a vis other societies) by means of employment or threat of employment, of more or less legitimate physical compulsion "
[21] Alfian, Thought and Political Change Indonesia, Gramedia Jakarta, 1986, pp.
[22] Mahfud MD, Politics of Law in Indonesia, LP3ES, Jakarta, 1998
[23] Sri Soemantri, and Implementation of Pancasila Democracy According to the Constitution of 1945, the publisher Alumni Bandung, 1969. Hal.14
[24] Sri Soemantri, Op-cit, pp. 157
[25] as a comparison, characteristics and requirements of a modern constitutional state (welfare state) are: (1) constitutional protections, (2) The independent judicial body (independent and inpertial Tribunals), (3) a free election, (4) Freedom to express opinions, (5) Freedom of association / organization and opposition, (6) citizenship education.

Selengkapnya ..

Theory Rule of Law

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.
Published by: Indonesian Constitutional Law 2007.

THE DEVELOPMENT of the concept of law is a product of history, for the formulation or understanding of the law states that continue to grow following the historical development of mankind. Therefore, in order to correctly understand and correctly state the concept of law, needs to first known picture of the historical development of political and legal thinking, which encourages the development of conceptions of birth and state law [1]. Also thinking about the State Law is very old, much older than the age of Sciences of the State or State's own Science [2] and thinking about the State Law is a modern idea of a multi-perspective and always current [3]. Viewed from the perspective of historical development of philosophical ideas and state laws regarding the State law has developed since 1800 BC [4]. Farthest roots of the early development of the State Law is thinking at the time of ancient Greece. According Jimly Asshiddiqie popular sovereignty idea grew and developed from the Roman tradition, whereas the ancient Greek tradition is the source of the idea of rule of law [5].

At the time of the ancient Greek concept of the State Law developed by the great Ancient Greek filusuf like Plato [6] (429-347 BC) and Aristotle [7] (384-322 BC). In his book Politikos produced in the end of his life, Plato (429-347 BC) describes the forms of government that may be executed. Basically, there are two kinds of government that can be held; government that was formed through the legal way, and the government is not formed through the law [8].

The concept of State Law by Aristotle (384-322 BC) is a country that stands above the law that guarantees justice to its citizens. Justice is a prerequisite for achieving happiness in life for its citizens, and as the basis of the justice that needs to be taught a sense of decency to every man so that he menjadsi good citizens. And for Aristotle (384-322 BC) who ruled in the state was not the real man, but a fair mind, while the ruling is only the legal holder and balance it [9].

During the medieval concept of the State Law was born as a struggle against the absolute power of kings. According to Paul Scholten in his book Verzamel Geschriften, deel I, 1949, pp. 383, in a conversation Over den Rechtsstaat, the term State law comes from the nineteenth century, but the idea of state law is growing in Europe have lived in the seventeenth century. The idea was growing in the UK and is the background of the Glorious Revolution in 1688 AD The idea had emerged as a reaction against the absolute monarchy, and formulated in the charter which was known as the Bill of Rights in 1689 (Great Britain), which contains the rights and freedoms than the subjects of the state and the regulations in the UK replacement king [10].

In Indonesia the term State Law, is often translated rechtstaats or the rule of law. Understand rechtstaats basically relies on the Continental European legal systems. The idea of starting to catch on rechtstaats to the XVII century as a result of socio-political situation of Europe dominated by the absolutism of the king [11]. Understand rechtstaats developed by legal experts such as the Continental Western Europe Immanuel Kant (1724-1804) and Friedrich Julius Stahl [12]. While understanding the rule of law began to be known as Albert Venn Dicey in 1885 published his book Introduction to the Study of The Law of the Constitution. Understand the rule of law based on Anglo-Saxon legal system or the Common law system [13]. Conceptions of State Law by Immanuel Kant in his book Methaphysiche Ansfangsgrunde der Rechtslehre, conveying the concept of a liberal constitutional state. Immanuel Kant expressed understanding of the law in the strict sense, which put the function in staat recht, only as a means of protection of individual rights and state power is defined as passive, who served as keepers of public order and public safety. Immanuel Kant understood this nachtwachkerstaats known as or nachtwachterstaats [14].

Friedrich Julius Stahl (German scholar) in his work; Staat and Rechtslehre II, 1878 pp. 137, State Law mengkalimatkan understanding as follows:

State must be the State Law, motto and that's actually than the development of locomotion in this new era. State must determine as a thorough-cermatnya the streets and the boundaries of how environmental activities (atmosphere) that freedom without being able to penetrate. The state must create or impose moral ideas in terms of countries, also directly, no further than the law should be according to the atmosphere. This understanding of state law, rather than for example, that the country's only maintain the rule of law without government goals, or simply to protect the rights of the individual. State law generally does not mean that the purpose and content than the State, but the only way and to make it happen [15].

Furthermore Friedrich Julius Stahl rechtstaats suggested four elements in the classical sense, namely [16]:
1. Rights-human rights;
2. The separation or division of power to ensure that rights (in the Continental European countries are usually called trias politica);
3. Government based on the rules (wetmatigheid van bestuur);
4. Administration of justice in the dispute.

Paul Scholten, one of the Jurist (legal expert) is the greatest in the twentieth century in the Netherlands, writing an essay on the State Law (Over den Rechtsstaats, 1935, see Verzamelde Gessriften deel I, hlm.382-394). Paul Scholten said the two traits rather than state law, which was described extensively and critically. The main characteristics than the State Law is: "er den tegenover is recht staat", meaning that subjects of that country has the right of the state, individuals have rights against the community. This principle is actually covered two aspects:
1. Man has its own atmosphere, which in principle is beyond the authority of the state;
2. Restricted human atmosphere that can only be done with the provisions of the law, with the general rules.

The second trait rather than state law by Paul Scholten says; er is scheiding van machten, meaning in the law states there is separation of powers [17]. Von Munch further argues that elements such as state law is based on the [18]:
1. Rights-human rights;
2. The division of power;
3. Attachment to all the organs of state in constitutional and judicial attachment to the law and the law;
4. The basic rule of peroporsionalitas (Verhaltnismassingkeit);
5. Judicial oversight of decisions (arrangements) public power;
6. Guarantee justice and basic rights in the judicial process;
7. Restrictions on the applicable law reflux.

In his book Introduction to the Study of The Law of The Constitution, Albert Venn Dicey forth three meanings (meaning three) of the rule of law: first, the absolute supremacy of regular or predominasi law to oppose the influence of arbitrary power and eliminate arbitrariness, preogratif or the broad discretionary authority of government; two equations before the law or the subjugation of the same from all classes to the ordinary law of the land is held by the ordinary court; this means that no one is above the law, both officials and ordinary citizens are obliged to obey the same laws, no state court administration; third, the constitution is the result of the ordinary law of the land, that constitutional law is not the source but the consequence of individual rights which are formulated and confirmed by the judiciary; in short, the principle - principle of private law through the judiciary and Parliament act in such a position was extended to limit the Crown and its officials [19].

[1] S.F. Marbun, the State Law and Judicial Power, Law Journal Quia Iustum Jus, No. 9 Vol 4-1997, pp. 9.
[2] Sobirin Malian, Ideas Need New Constitution 1945 Substitute, FH UII Press, Yogyakarta, 2001, hlm.25.
[3] A. Ahsin Thohari, the Judicial Commission and Judicial Reform, Elsam, 2004, pp. 48.
[4] See J.J. von Schmid, Thinking About the State and Law, Development, Jakarta, 1988, pp. 7.
[5] Jimly Asshiddiqie, Cheap Advertising Ideas in the Constitution and its Implementation in Indonesia, New Ichtiar van Hoeve, Jakarta, 1994, hlm.11.
[6] Plato (429-347 BC) was a pupil of Socrates (469-399 BC), he was born on 29 May 429 BC in Athens. Many produce works of Plato in Philosophy, Politics and Law. Delivered the famous work is Politea (the state), Politicos (about Expert State) and Nomoi (the Act).
[7] Aristotle (384-322 BC) comes from Stageira. He was a pupil of Plato (429-347 s.M). Many produce works of Aristotle in Philosophy, Logic, Polik, and Law. Termasur his work in Philosophy and Law is Ethica Politica.
[8] Budiono Kusumohamidjojo, Philosophy of Law; Problemtika Order, the Fair, Grasindo, Jakarta, 2004, hlm.36-37.
[9] Moh. Kusnardi and Harmaily Ibrahim, Introduction to Constitutional Law Indonesia, FH PSHTN UI and Sinar Bakti, 1988, pp. 153.
[10] Terpetik in O. Notohamidjojo, meaning the State Law for State Reform and Legal authority for Renewal Communities In Indonesia, Badan Penerbit Kristen, 1970, pp. 21.
[11] Padmo Wahjono, Legal Development in Indonesia, Ind.-Hill Co., Jakarta, 1989, pp. 30. compare with Philip M. Hadjon, Legal Protection For People in Indonesia; A Study About The principles, application by the Court of Public Justice in Environmental Justice and the Formation of the State Administration, Bina Ilmu, Surabaya, 1972.
[12] Miriam Budiardjo, The Basics of Political Science, Gramedia Pustaka Utama, Jakarta, 1998, pp. 57.
[13] Philip M. Hadjon, Legal Protection For People in Indonesia; A Study About The principles, application by the Court of Public Justice in Environmental Justice and the Formation of the State Administration, Bina Ilmu, Surabaya, 1972, pp. 72.
[14] M. Tahir Azhary, State Law, Jakarta, Bulan Bintang, 1992, pp. 73-74.
[15] O. Notohamidjojo, meaning the State Law for State Reform and Renewal authority for Public Law in Indonesia, Badan Penerbit Kristen, Jakarta, 1970, pp. 24.
[16] Miriam Budiarjo, Op, cit., Pp. 57-58.
[17] O. Notohamidjojo, op.cit., Pp. 25.
[18] A. Hamid S. Attamimi, Role of Presidential Decree Providing Government of Indonesia in the State; An Analysis Study of Presidential Decree Concerning the Functions settings over a period of Pelita I - Pelita IV, PhD dissertation, University of Indonesia Faculty of Graduate Studies, 1990, hlm.312.
[19] A.V. Dicey, Introduction to the Study of The Law of the Constitution, Ninth Edition, Macmillan And Co., Limited ST. Martin's Street, London, 1952, pp. 202-203.

Selengkapnya ..

The influence of Positivism in Law Thought (Studies Against Positivism Law School Analytical John Austin)

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.
Published by: Indonesia Constitutional Law 2006.

INTRODUCTION
Opinion stating that the mother of all kinds of philosophy of science is an argument that almost accepted by all circles. This is proven by the close relationship between the specific knowledge with a specific philosophy, such as legal philosophy that gave birth to the science of law and so on.

Philosophy of law is a reflection of the theoretical (intellectual) of the oldest law, and may be said to be the mother of all theoretical reflection on the law. [1] Philosophy of law is a philosophy or a part of the philosophy that directs (focuses) reflections of law or legal symptoms.

As a reflection of philosophical, legal philosophy is not intended to question the positive law [2] certain, but the law reflects the law as keumumannya or so (as such law). Philosophy of law to disclose the nature of law by finding the deepest foundation of existence of law as far as could be reached by human reason. [3]

When referring to the history of western thought, as mentioned by Scheltens [4], the philosophy is the oldest form of rational thinking that is understanding and can account for himself. Covering virtually all areas of human thought, which is a whole which could hardly be distinguished. In the development of knowledge and methods to realize their own objects, even self mengabsolutkan, which gradually broke away from philosophy. Scheltens further mentioned that scientists berputus charcoal with philosophy, philosophy was considered unnecessary, not useful and can not be accounted for. Fascinated by their own successes and methods arena of clarity and resolve their own field studies, and then delete the philosophy, the belief that from now on the results of science must be replaced and to ignore philosophy.

Trend of thought as described above, has the support of the idea of three stages of August Comte. [5] According to the history of human thought evolved in three stages; theological stage (mystical) where humans solve problems by asking for help to God or the gods, who did not affordable by the five senses; philosophical point which at this stage the nature of things is the last statement of all; and positivist stage, a stage where the facts can be observed with the senses is the only object of human knowledge. In the final stage of this world and the world God has abandoned philosophy.

This simple writing is not intended to address these issues, only to find the answer to how the influence of positivism in legal thought, especially the study of analytical positivism of John Austin.

ANALYSIS
Philosophy of law to find the essence of the law, which investigate the law as a consideration Siwak F values [6]. Where law ends of science, philosophy of law therein began, he studied the questions are not answered in the science [7].
Talk about the flow of positivism, that this genre is as old as philosophy. However, rapidly emerging in the 19th century, when empiricism dominates thinking. Positivism was born and developed under the auspices of empiricism [8]. This means that between empiricism and positivism can not be separated.
Positivism is one of the flow in the philosophy (theory) that the law assumes that the legal theory is only concerned with positive law. Science of law does not address whether the positive law is good or bad, nor discuss the effectiveness of law in society [9].

In the flow of legal positivism are two sub-streams are:
Legal flow analysis, first proposed by is John Austin. The flow of pure positive law, spearheaded by Hans Kelsen. In this paper, as stated earlier, focusing on the flow of positive law analytically by John Austin. Positivism which pioneered John Austin, who was named Analytical Judisprudence, very close to the school of public law. Austin uses analytical methods alone. Through analysis of the legal systems of some Austin wants to arrive at a general idea about the law.

Based on the empirical method alone, Austin came to the understanding of the State, which he said is absolutely true. State viewed as a reality taken for granted by people in certain areas. States arise and be maintained, so most have the habit of subordinates to obey the government. If the habit is not stopped then there is another country. There are various reasons to obey the government. There are those who obey so they cling to the prejudice that the government always to be obeyed. While other reasons for fear of chaos, when the state changed. All this is confirmed in the experience. Values are not disputed. No doubt also that the ruling is the only source of law. On top of that legal ruling was not found. Austin revealed that each of the positive law determined directly or indirectly by a person or a group of authoritative people for a member or members of a sovereign political community, in which the building is the highest law. With this provision does not deny the existence Austin norms of divine law, moral norms and international law. Dipastikannya course, that all these principles are not able to confirm or nullify the law in a country [10].
The flow of positive law that defines analytical law as "a command of the Lawgiver" (order from forming law or authorities), namely: a command from those who hold supreme power or sovereignty held. Law is considered as a logical system, and is still closed (close logical system). Law explicitly separated from the moral, so from the matters relating to justice, and not based on the consideration or assessment of good or evil.

Next John Austin's legal share of:
1. Law of God's creation, and
2. Laws made by humans, which consists of;
a. law in the strict sense is also called positive law, consisting of:
- Laws made by the authorities, such as the Constitution Act, government regulation and others.
- Composed of law or made by individual people, who used to exercise the rights granted to him. For example: the right guardian for people who are under guardianship, the right curator of the agency / person in curatele.
b. law in the sense that is not true, the law that does not meet the legal requirements. This type of law is not created or determined by the authority / authorities sovereign entity. For example: the provisions made associations or certain agencies in the field of sports, students and so on.

There are four important elements according to John Austin called the law, namely:
a. command
b. sanctions
c. obligations
d. sovereignty

The four elements are related to each other can be explained as follows:
Elements of this command means that one party wants someone else to do his will, those who governed would suffer if the order is not executed or obeyed. The order was a distinction obligations to the ruled, and the latter can only be done if the ruling is a sovereign party. And who has that sovereignty can be a person or group of people (a souvereign person, or a body of persons souvereign).

John Austin thought the fruit was set out in the second famous book, namely: The Province of Jurisprudence Determined and Lecture on Jurisprudence. [11]
The flow of analytical legal positivism which was pioneered by John Austin is at about the 19th century and the first part of the 20th century, apparently in control of Western legal thought, which also is based on Greek philosophy. Quite clear where the role of the flow of the analytical positivism, especially those that the application of the ruling made by the authorities. With the identification of the application of law applied by law will ensure that each individual can know with certainty what actions are permissible and what actions should not be done. Even then negarapun will act firmly and consistently in accordance with what has been defined and decided, in carrying out justice according to the provisions of the state. Similarly, the application of the law by its provisions and the rules that have been made there must be carried out in accordance with everything that has been set.

Austin was the first who explicitly separating between positive law with the law aspire, in other words, he separated unequivocally between the moral law and religion. Legal science deals only with positive law, not membahasa relationship between positive law with the moral and religious. Regardless of good or bad law, accepted or not by the public.

The essence of all law is a command (command), which is made by the sovereign authority, addressed to the ruled, accompanied by sanctions if the order was violated. All positive law is a command. Command of the sovereign or the sovereign or the command of command of law-giver.
Sovereign is not bound either by the rules of her own making, nor by principles derived from the (moral and religious). Issue of sovereignty is one element of positive law is to be pre-legal (not legal but political affairs or sociology) and should be regarded as something existing in reality [12].

But besides the benefits of existing and proposed by the flow of Analytical Positivism is already, of course there are some weaknesses of his teachings about the lack of appropriate and contrary to various parties, especially the people who live and dwell in this period. When viewed as fundamental, then the very basic weaknesses in the flow of Analytical Positivism is precisely with the identification of law and the law. Because if one considers the real, that no matter how bad the rules and regulations that exist, so long as such rules and regulations have become a law must be applied in society and also directly judge will be bound by laws that set.

Legislation also has weaknesses / deficiencies, as proposed by Bagir Manan that:
1. Legislation is not flexible. Not easy to adapt to society. The formation of legislation takes time and certain procedures while mesyarakat change continues even may be very fast. Resulting in the gap between laws and regulations with the community.
2. Legislation was never equipped to meet all legal events or lawsuits, and this led to what is commonly called the legal vacuum (Bagir Manan. 1992:8)

In relation to the identification of law and a law so strongly made by the authorities and the government, then in the end may be of Legal and Law are misused by certain parties who will control the country in absolute and absolute accordance with the wishes existing at that time. Where then in the state authorities can use the legal provisions and legislation to give legitimacy to their actions true, which according to the legal sense of community that action is an immoral act and the criminal and cruel. So then everything will all provisions and orders issued by the authorities could be used as personal legal provisions and regulations in force in their society, and then the individuals who are in the public sphere will be in a position of dilemma, where one side of law and regulations the ruler can not be maintained consistently, if the provisions of law and legislation itself is used as a tool to oppress the injustice.

Opinion stating that if the law had been available, codified or fragmentary tools will be enough legislation to create a reliable action against any violation or to protect the interests of the community. Less noticed and recognized, that the rule of law is considered close to the requirements of justice must be satisfied that the law should be able to reflect the demands of public conscience, especially their feelings of justice.
There has been a shift in the principles and conceptions of state law to state law that put the laws made by the government as a measure of truth. In the law like this every government action that is not fair given the justification to act laws through the use of attribution, so the legal authority as a means of justification is placed with the positivist character - instrumentalistik.

In the Austin school said that the law is considered as a logical system, remains and is closed (closed logical system). With a fixed and closed nature of these laws, the laws at that time did not accept the development of any party even if the development comes from the public sphere in the country, the legal consequences are not familiar with dispensations and deviations that are considered by local communities are not in accordance with prevailing custom. As we know that every law must always be obeyed, because the law sometimes even grant a dispensation for the occurrence of deviations along the stipulation does not, or not a crime or offense. Especially in legal terms it is private (especially in terms of making the agreement between the parties), that the law is made usually depends on the agreement between both parties as long as not contrary to public order, decency and propriety. Thus, the main problem is how to try to get the community citizens can fully comply with the provisions put to the law without coercion or violence. So simply speaking, that is to be undertaken are the rules that nature writing, either, authority staff and facilities adequate, although actually it can not be said to be a simple thing.

Of teaching from Austin who says about the law in the sense that is not true, namely that the law does not meet the legal requirements, that the provisions are clearly visible, although the law here could have been created or determined not by the authority / authorities sovereign body, but still the existence of these laws are not ultimately approved by the authorities. Because the concept is clear that the law is classified as a law in the sense that is not true. Thus, still teaching from Austin are not able to provide a place for the community, based on habits that have long held that the possibility was formed to be a rule that is more respected in the community who have become powerless. As is well known that from living with humans who then make contact and interact with each other, so that the law would be created. Neither the state nor the law of human life arising from the heart because of the desire of each individual to obtain the order. However, this concept does not appear on the teaching of analytical positivism. With the law in the sense that absolutely, positively consequences flow from the analytical positivism, because the meaning of the laws made by humans could be a form of command and absolute terms that come from the ruler becomes a necessity for individuals to run with like or do not like or want and do not want. Communities are required to run with all my heart that the possibility for the formation of an authoritarian regime of the country who subscribe to this doctrine will be created very easily.

CLOSING
In closing the above description can be concluded that the flow of positive law which has an analytic of power flow shared by many legal thinkers in the West in the 19th century and early 20th century. the success of this flow seen in the form of legal certainty really guaranteed in each state who subscribes. However, from these teachings that have developed on the concept of Western thinkers, the doctrine-ajran of positive law which is also analytically has many weaknesses here and there. The main point of weakness, that the flow of positive law which tends to make the analytical power of a ruler to establish an absolute rule. This is because of four important elements of the teachings of John Austin to be called laws, of which consists of commands, sanctions, obligations and sovereignty. So that the four essential elements of the law makes mebentuk rulers legal provisions and the law becomes an absolute decision must be implemented without providing the opportunity for other parties to provide input to develop and grow from within their own community. All provisions of law and the laws that formed into a command and obligations to be executed and obeyed, then have a binding sanctions law executors be directly tied to it. Then the last that all provisions of law makers and law in this case is the ruling party can only be accomplished if the ruling party as the ruling party is a sovereign party. Of these provisions can be analyzed that the authorities or the government of a sovereign as forming the legal provisions and the law needs to be really no more, because obviously a State that has pemeritahan themselves, the people themselves and the region itself must have a something (in this case can be called the State) are considered sovereign or to have their own sovereignty, and also actually to have the sovereignty that is part of a country that can not be separated, then sovereignty is already part of the form of government and political system in the country itself.

REFERENCES
Achmad Roestandi, Responsibility Philosophy of Law, Armico-Bandung, 1992.
Bagir Manan And Kuntana Magnar, Some Problems Indonesia Constitutional Law, Alumni, Bandung, 1993.
Arif Bernard Sidhartha, Reflections About the Structure of Legal Studies (a study of philosophical cornerstone and the nature of legal scholarship as a basis LMU development of national jurisprudence Indonesia), Bandung Mandar Maju, 2000.
Hendry P. Panggabean, MA Function in Everyday Practice, Pustaka Sinar Harapan, Jakarta, 2001.
J.J. H. Bruggink, Arif language Sidhartha Rather, Reflections About Law, Citra Aditya Bakti, Bandung, 1999.
Lili Rasjidi, Basics of Philosophy of Law, Citra Aditya Bakti, Bandung, 1999.
Lili Rasjidi, Philosophy of Law Is Law, Youth Rosdakarya, Bandung, 1991.
M. Solly Lubis, Politics And Law In the Era of Reform, Mandar Maju, Bandung, 2000.
Moh. Mahfud MD, Political Law In Indonesia, LP3ES, Indonesia, 1998.
Ridwan, The influence of positivism in Legal Thought (Critical Study of Flow-Positivism Legalism Law), Master of Law Journal, Vol.2 No.1 February 2000.
Theo Huijbers, Philosophy of Law in track history, Canisius, Yogyakarta, 1997.
[1] Lili Rasjidi, in Bernard Arif Sidhartha, Reflections About the Structure of Legal Studies (a study of philosophical cornerstone and the nature of science as a basis for legal LMU development of national jurisprudence Indonesia), Bandung Mandar Maju, 2000, hlm.119.
[2] is a positive law is the translation of positum ius in Latin, literally means the law specified (gesteld recht). Thus, positive law is the law established by humans, because it was in the old expression called stellig recht. See J.J. H. Bruggink, Arif language Sidhartha Rather, Reflections About Law, Citra Aditya Bakti, Bandung, 1999, p. 142.
[3] Ibid
[4] Scheltens, in Ridwan, The influence of positivism in Legal Thought (Critical Study of Flow-Positivism Legalism Law), Master of Law Journal, Vol.2 No.1 February 2000, pp. 41.
[5] Ibid, p. 42.
[6] SOETIKNO, in Lili Rasjidi, Basics of Philosophy of Law, Citra Aditya Bakti, Bandung, 1999, hlm.1.
[7] Lili Rasjidi, ibid, hlm.3.
[8] Muh. Bagir Shadr, quoted by Ridwan, Op cit. pp. 56.
[9] Achmad Roestandi, Responsibility Philosophy of Law. Armico-Bandung, 1992. pp. 79.
[10] Quoted from Theo Huijbers, Philosophy of Law in track history, Canisius, Yogyakarta, 1997. pp. 137-138.
[11] Quoted from: Lili Rasjid; op cit; pp. 42-44
[12] Quoted from Achmad Roestandi, Op cit. pp. 81

Selengkapnya ..

Bye-Bye "Hatzaai Artikelen"

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.
Published by: Indonesia Contitutional Law 2007.

After waiting a few tens of years, finally the long struggle of pro-democracy activists in Indonesia to eliminate all forms of rules that do not fit with the culture of democracy, human rights (human rights), and the spirit of the law of the state, reaping encouraging results. This is reflected in the decision of the Constitutional Court (MK) on the test (judicial review) of Article 134, Article 136Bis, and Article 137 of Law Book Criminal Law (Penal Code) against the 1945 Constitution proposed by Eggi Sudjana and Pandapotan Lubis (6 / 12 ).

Tax Court in the verdict 013-022/PUU-IV/2006 stated that Article 134, 136Bis, and 137 of the Penal Code, which governs the crimes dignity (humiliation) of the president and vice president violated the 1945 Constitution and void and have no force legally binding. Although the resulting decision by the Court was not a unanimous vote or unanimous nine Constitutional Justices, because four Justices dissenting opinion to the Constitution, but at least the decision of this Court can be a breath of fresh air and a new milestone for the acceleration of the democratization process in Indonesia is currently running .

As we know, Article 134, 136Bis, 137 of the Penal Code is a lump of stone and block the main enemy of freedom of expression of pro-democracy activists in Indonesia in the voice of conscience and channel the aspirations of criticism and protests to the authorities (read: president) for this. And also these articles are also frequently used by authorities as an instrument and the legal basis to send activists to jail. Among the activists these articles known as the rubber article or haatzai artikelen. Said to be a rubber article due to the application and interpretation can be flexible depending on the tastes mungkret and subjective view of the police, prosecutors, judges and the rulers in power. In addition, when viewed from a historical aspect, the invention of the rubber articles are by the Dutch colonizers to be used as a legal instrument in the action against anyone who insults the Queen of the Netherlands and the Dutch representation.

Reflecting on past experience, historical records show that many of the activists critical of the government's contempt offense victims head of state. During the New Order regime (Order) under the leadership of former President Suharto many activists who become victims. One of those who have sat in the chair condemned as insulting the head of state defendant is Sri Bintang Pamungkas who is an academic. By the time Suharto was still in power in this country, Sri Bintang should be in jail for 10 months after a judge sentenced him guilty of insulting the head of state during demonstrations in Dresden, Germany. Besides Sri Bintang, there are still many other activists who had been the victims of the ferocity of rubber articles call it, activists PIJAR Tri Agus S. and politicians Aberson Marle Sihaloho.

Also in the reform period, despite a decline in the use of rubber articles by the authorities to eradicate the critic. However, it does not mean activists who are victims at all. In the reign of former President BJ Habibie rubber articles are not used, although at that time the people and students demostrasi lasted nearly every day and so massive. At the time of Habibie became president, it was the policy (policy) is taken by him is to release all political prisoners (political prisoners) and political prisoners (prisoners) New Order regime's legacy. The author does not assume the use of a rubber article by the former President Habibie in his administration based on two things, namely, first, the political circumstances at that time did not allow former President Habibie use rubber articles. Second, the short reign held by former President Habibie, as known to the government of former President Habibie is temporary and transitional.

At the time of administration of former President Abdurrahman Wahid (Gus Dur) was recorded Muhammad Nazar, Chairman of the Aceh Referendum Information Center (SIRA) never felt such a rubber article. At the time of former President Megawati held a national leadership again sticking the usage of rubber articles. A number of students and activists were arrested and stand trial on charges of insulting the head of state. A list of names like Kleruk Want Ignas, GMU student of philosophy is captured by police set fire to a replica doll because of former President Megawati. Raihan and six female students in Aceh herded into police headquarters because of their demonstrations a red cross sign in the photograph of President Megawati and Vice President Hamzah Haz. And based on data released by Human Rights Watch (HRW) Asia Division, the government of former President Megawati noted as the most frequent regime ensnare his political enemies with contempt the head of state chapters. During the Indonesian independence, there are at least 46 cases of insulting the head of state, and 39 cases of insult to the girl's Bung Karno.

In the reign of President Yudhoyono, a similar incident over and over again. Penal Code Article rubber back membukam used as a weapon to silence activists who tune to the government. The result, some victims aktivispun back rubber articles of the Penal Code. Within two years the government of President Yudhoyono, there are at least four people charged with such a rubber article, even two of them had been disconnected (in khract van bewuijs). On March 24, 2005, I Wayan Gendo suardana, arson photos convicted president and vice president, was sentenced to six months in prison by Denpasar District Court. The same fate befall Fahrur alias Paung Rohman. State Islamic University Students (UIN) were arrested while demonstrating in front of the National University Campus Pejaten. The reason that made the police to capture the moment Fahrur Rohman, because he was at the time of distributing posters demostrasi President Yudhoyono and Vice President Jusuf Kalla, whose face was given a cross and the words "We Do not Hold". And the action is considered by police as an act of insulting the dignity of the president and his deputy. Consequently, he was sentenced to imprisonment for three months, 23 days since proven guilty of contempt against the president as stated in Article 134 of the Penal Code Junto Article 136Bis. Lubis Pandapotan activists were arrested May 18, 2006 on the grounds carried posters demanding President Yudhoyono and Vice President Jusuf Kalla resigned his position as demonstrated in Bundaran Hotel Indonesia (HI) on May 16, 2006. The latest is that the case against Eggi Sudjana. He was charged with spreading rumors by providing entrepreneurs Jaguar Harry Tanoesudibyo to one of President Yudhoyono's son, secretary of state, and the two presidential spokesman. Eggi any further charged with using insulting articles against the president.

Grounded in the reality of the past dark history that until now were often happens, and when examined in depth, the decision taken by the Court in this case, the deleting the existence of the Articles of rubber / haatzai artikelen contained in the Penal Code, especially articles that regulate offense insult to the head of state can be said is correct and true. This is because, first, in addition to a Dutch colonial heritage and hundreds of years old, the Articles of rubber / haatzai artikelen in the Criminal Code is no longer relevant to the circumstances in which Indonesia is undergoing a transition process towards a constitutional democracy. Second, the articles of rubber / haatzai artikelen in the Penal Code was violated human rights values that do not uphold the freedom of expressing thoughts and opinions, and freedom of information. Third, the articles of rubber / haatzai artikelen in the Criminal Code, creating legal uncertainty (rechtsonzakerheid) and negating one universal principle that is based on a state law (the rule of law) the principle of equality before the law (equality before the law / equality under law ). Fourth, many states currently already deleted the article an insult to the head of state or government with arguments to guarantee freedom of expression freedom of information EAN. Even in the Dutch state, which is the origin of the article where it came from, the provisions of haatzai artikelen been deleted. Fifth, the current offense insult by modern legal thinkers (modern legal thinkers), is no longer considered a problem in the domain of criminal law, but as a problem in the domain of civil law. Because humiliation is a matter between individuals (private), not a public matter and should be sanctions (punishment) is not given in the form of sanctions to imprisonment but to pay money damages.

Now, post-discharge the Constitutional Court's decision to cancel a number of rubber articles of the Criminal Code, at least there's one thing to be done by the government and the House of Representatives (DPR), the government and parliament was expected to conduct a review of the draft Bill (the Bill) the revision of the Penal Code . Because if the reading and listening to the draft, there are still some articles that can be categorized as rubber articles (offense insult to the head of state) such as Article 224, paragraph 225 and 226 (1). Because if it is not immediately done by the government and Parliament, it is not impossible, later after the draft revision of the Criminal Code are adopted and enacted, the event of cancellation by the Constitutional Court will happen again.

Selengkapnya ..

Mafia Justice Between There and the Nothing

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.

Geef me Goede rechter, rechter commissarissen Goede, geode geode officieren van Politie justitieen Ambtenaren, en ik zal met een slecht wetboek van het recht straf procces geode beruken (Taverne).

THE face of law in this country post-1998 reforms did not visit sunny. Reformation ideals to make the law as a Commander (Supremacy of Law) in the national and state life did not materialize. More and more law enforcement (Law Enforcement) hope even more live fantasy (Utopia). Above statement is not a pessimistic expression of the law in this country but that's the reality condition of law enforcement in Indonesia today. Many factors that cause terpuruknya law in this country.

These factors are the First, legislation is currently reflect more accurately reflect the interests of rulers rather than the interests of the people. Second, the low Moral Integrity, Credibility, Professionalism and Legal Awareness Law Enforcement officers in enforcing the law. Third, lack of facilities and supporting the smooth prasana in the law enforcement process. Fourth, the level of public legal awareness is still low. Fifth, the legal culture that is still less response and respect for law.

Discuss the presence or absence in the Judicature Mob justice system in this country is something very interesting. Mob justice is something there but invisible. This is because so neat and tersistematisnya this judicial mafia networks. Only certain people are able to know of its existence. The actor who was behind the judicial mafia network is nothing but the law enforcers themselves. The term Law Enforcement officers are very broad, so include those directly involved in the field of law enforcement. Within this paper, it is law enforcement will be limited to those who are directly involved in law enforcement that includes not only law enforcement but also the maintenance of peace consists of judges, prosecutors, lawyers and police. And the term commonly referred to Attorney, Advocate, Justice and the Police are Chess House.

The mafia in court are greedy people who have been treated according to the law of business rules. They did not kill, but to manipulate the evil that is good and good becomes evil opposite. They turn the facts, the right becomes wrong and wrong becomes right the wrong that people should be punished (eg 20 years in prison) can freely roam or be sentenced to house arrest weird., While his opponent is right in the eyes of the law rather pay the penalty by crouching behind bars. In addition Judicial Mafia, has turned the ideal function of the Court as a place justisiabel (Seeker of Justice) to get justice to "market" in which case the transaction. Excesses generated from aberrant behavior of law enforcement / judicial mafia is the disappearance of justice in this country. Face legal / law enforcement does not change that as he had been expressed by the Greek philosopher Plato (427 BC-347 BC) which states "that the law is like a cobweb can only trap a weak and can easily be destroyed by those who are strong". Justice currently only belongs to those who have the power (money) only and does not belong to all mankind.

According to criminologist Ronny Nitibaskara causes of deviant behavior law enforcement officers / Mob Justice because they are stuck in the pattern of life-Materialist Pragmatic who worships wealth. Also Mafia Courts exist since the low awareness of the Code of Professional Conduct of law enforcement officers in carrying out duties and legislation that support the justice system (Criminal Code) has a gap and support the Judicial Mafia in childbirth.

Mafia Trial in assessing this sense is not fair / unfair if we just blame someone or not law enforcement officers to frame a system of people's work. People and systems have Interdependent relationships because good people would be damaged if not in a good system, otherwise a good system would be damaged if too diselenggarakn by people who are not good. And to overcome the problem of judicial mafia is author wishes to depart from the concept of Lawrence Meir Friedman in his book Legal System suggests there are three elements of the legal system (Three Element of Legal System), namely: Structure (Structure), substance (Subtance) and Cultures of Law (Legal Culture) . A description of the three elements of the legal system is as follows, First, the structure is a frame or chassis, parts of which still survive, giving the kind of shape and boundaries of the whole. Structure in the legal system in Indonesia, for example law enforcement such as police, prosecutors, and courts. Second, the substance is the rules, norms, and patterns of human behavior in real dalm system. The substance also means that products produced by people who are in the legal system, including for their decisions, the new rules which they set. The substance also includes living law (law of life), and not just the rules in the law books or law books. Third, the legal culture is the human attitude toward law and legal system, beliefs, values, thoughts, and hope.

The third element in the legal system must be addressed in an effort to overcome or dismissed Mob Justice in Indonesia. In the structure of our legal system would need to set up an Independent Institutions Institutions that are outside of Law Enforcement through the control functions of the institutions of law enforcement. Why should institutions outside of law enforcement institutions this is done for monitoring objectivity because as we know that internal controls had been closed does not seem always transparent in order to maintain the good name of their corps. The Judiciary in this field will be implemented has been the establishment of the State Institute of Judicial Commission which has the task of maintaining one of the judges' behavior and maintain the dignity of judges. And also a significant sampling of community control of Law Enforcement Institutions must exist.

For that would be other law enforcement institutions (judiciary, police and Advocate Organization) was formed immediately perform Independent Institutions pegawasan function. And also something else that is very urgent need to overhaul the structure of the legal system in Indonesia is the bureaucracy and administration, it is true what dikemukan by Max Weber that modern law is the law that is very bureaucratic. However, the existing bureaucracy to respond to social realities so as to serve the community well. In the substance of the legal system in Indonesia need to be revised laws and regulations that support the judicial system in Indonesia such as the Criminal Code because it is not relevant to the current condition of the society.

For culture / cultural attitudes need to be developed law abiding and obedient to the law of law enforcement officers in enforcing the law so that a role model for people. The last thing that is not less important in overcoming Mob Justice is the role given by the institution of the Faculty of Law. Because as we know that law enforcement officers are biological children born to mothers who named the Faculty of Law. Let the entire Faculty of Law (FH particularly oriented to print legal practitioners) in Indonesia is not only oriented birth-Jurist Jurist (Sarjana Hukum) that are reliable in all but legal science-oriented birth-Jurist Jurist who qualified in the field other than law also Jurist , which has jurits Moral Integrity, Credibility and professional in carrying out law enforcement. It seems to Philosophy courses Professional Law and Ethics is not just a formality given only to students but trying to actually put these courses into the conscience of students.

Based on the above description can be concluded that the Mafia Courts deal with problems need a extra work through a systematic effort, comprehensive, impartial. Efforts are three elements to fix the legal system on the dikemukan and contributions of educational institutions namely the Faculty of Law. With the hope to be able to materialize a clean judicial system of the Mafia Courts and charismatic.

Selengkapnya ..

Reflection on Three-Year KPK

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.

NOTHING feels three years after the age of the Corruption Eradication Commission (KPK). In the age which is still relatively young, the Commission has been able to be a promising institution, and invited many criticisms, a joyous thing. since the beginning of its presence Commission has invited a lot of public attention, many people hoped the Commission could be a solution to the logjam of corruption that occurred during this. Follow up was conducted by various gebrakanpun Commission as an effort in eradicating and combating corruption in Indonesia.

If we listened to the back, the birth of the Commission is the mandate of Law No.20 of 2001 on Corruption eradication as contained in Article 43 paragraph (1) states, the establishment of Commission for Corruption Eradication later than two years since this Act in legislated (November 21, 2001). In addition to the mandate of Law No.21/2001, which can argumetasi basis for the establishment of the Commission is to substitute the function of RI Attorney General and National Police (Police) are judged to be functional and does not show seriousness in the effort to eradicate corruption in Indonesia so far. And according to Article 6 of Law No. 30 of 2002 on Corruption Eradication Commission, the Commission has a duty and authority to coordinate with the relevant authorities to combat corruption, supervision of health authorities to eradicate corruption, to investigate, investigation, and prosecution of corruption cases, take action prevention measures corruption, and to monitor the implementation of the state government.

Please note, if viewed from the historical aspect of corruption in Indonesia, the Commission is not the first institution that was formed to eradicate corruption in Indonesia. History records from the period 1967-2002, at least eight agencies / teams eradication of corruption was formed as an effort to eradicate corruption.

Once in the New Order (New Order) the establishment of institutions / teams formed to eradicate corruption from the first time on 2 December 1967, through Presidential Decree. 228/1967 Corruption eradication team name. Institution / second team, formed through a Presidential Decree. 12/1970 dated 31 January 1970 a Commission of four teams. Institution / third team, formed in 1970 a team of Anti-Corruption Committee (KAK). Institution / fourth team, formed in 1977 through Presidential Instruction No.. 9 / 1977 name OPSTIB team. Institution / fifth team, in 1982 the Corruption Eradication Team (TPK) is turned on again. However, Presidential Decree regulating ironically more about the duties and authority of TPK was never realized.

Furthermore, during the reform push and pressure from the people and to launch an eradication of corruption, collusion and nepotism (KKN) is so great days of New Order government, the Government together with the House of Representatives (DPR) make improvements to Law No. 3 Year 1971 on Eradication of Corruption became Law No. 31 Year 1999 on Eradication of Corruption act. Next was established institutions / sixth team, through a Presidential Decree. 127 in 1999, a Commission inspection team Wealth of State Officials (KPKPN). Institution / seventh team, was established by Government Regulation (PP) No.19 In 2000 a joint team eradication of corruption (TGTPK). Finally, after the dissolution of established institutions TGTPK / eight teams, based on Law No.30/2002 with the name of the Corruption Eradication Commission (KPK).

Although currently most people who rate the performance of the Commission is still less than satisfactory, but when evaluated in a comprehensive performance from the eight agencies / team was formed to memberatas corruption, the Commission's performance as a result of the new institution "for the rest of the corn" can be said is quite good and satisfactory in make efforts to eradicate corruption when compared with seven similar institutions had formed earlier. This can be proved from the Commission's success in uncovering corruption cases committed by state officials. Many of those state officials who eventually became defendants sentenced to prison even lead to no light. Several corruption cases of government officials who successfully dismantled by the Commission among others, cases of corruption that made the helicopter purchase by the former Governor of Nanggroe Aceh Darussalam Abdullah Puteh, corruption cases that occurred in the General Elections Commission (KPU), which involves KPU Chairman Nazaruddin Sjamsudin and Mulyana W Kusumah. In fact, the Commission managed to uncover performance and prove that the mob justice have been roaming the world to dismantle our judicial bribery case involving a lawyer Probosutejo, Harini Wijoso, and employees of the Supreme Court Pono Waluyo.

Apparently, the results of the Commission's performance is quite successful in uncovering corruption sharing does not necessarily reap something positive, the response occurred it was a cause of resistance in the form of counterattack corruptors (corruptors fight back) to the Commission. As we know, at the end of last August, three men convicted of corruption cases, Mulyana Wirakusumah, Nazaruddin Sjamsudin et al, and Capt.. Tarcisius Walla, to test the constitutionality of a number of vital articles in Law No.30/2002 on the 1945 Constitution to the Constitutional Court (MK). But the backlash to the Commission corruptors not result in mengembirakan. Through the Tax Court decision to grant only part 012-016-019/PUU-IV/2006 petition filed by Nazaruddin Sjamsudin et al by stating that Article 53 of Law No. 30/2002 on the Commission contrary to Article 24 paragraph 1, 2, Article 24A Paragraph 5, and Article 28D Paragraph 1 of the 1945 Constitution. And the Court rejected as a whole petition filed by Mulyana Wirakusumah and Capt.. Tarcisius Walla. Practical thus if we are relying on the decision of the Court is currently a constitutional aspects of the Commission's existence no doubt.

Finally, in the future we hope the Commission as the front guard in the eradication of corruption, could play a more optimal in eradicating corruption in Indonesia. Because if not, corrupt the disease suffered by this nation, since the new order until this moment will never be cured.

Selengkapnya ..

Ministry of State Bill Controversy

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.
Published by: The Daily Pikiran Rakyat, 28 Nopember 2006.

IN the past few days, the controversy surrounding the draft Bill (the Bill) of the Ministry of State continues among the public. Even in its development, the government through the Minister of State Secretary (minister) Yusril Ihza Mahendra has refused to take the attitude expressed formulation of several articles contained in the substance of the draft State Ministry and demanded that the House of Representatives (DPR) will soon make a change (revision) of the substance of the draft Bill (Media Indonesia, 3/03/2007). Keep in mind, Indonesia Over 58 years standing and has formed 36 of the cabinet, this time forming a new cabinet would be governed by the Act. Bill formed the background of the State Ministry for a mandate of Article 17 paragraph 4 of the 1945 Constitution.

In Article 17 paragraph 4, which is the third amademen results of the 1945 Constitution stated that the establishment, alteration, and dissolution of the Ministry of State set out in legislation. In addition, the intent and purpose of the establishment of the State Ministry of the Bill is to strengthen the presence of presidential government system laid down by the 1945 Constitution and to give assurance or guarantee in the cabinet formation process and the determination of the ministers who had been based more on aspects of political bargaining (bargaining politics ) alone. In addition, the establishment of the State Ministry of the bill is a preventive effort to prevent arbitrariness (abuse of power) in the form and the president dissolved the Department / Ministry of State.

As we know, in the past the formation and dissolution of the State Ministry is done entirely by the President without the involvement of the role of representative institutions (parliament) has resulted in alteration and dissolution of the Ministry of State for political purposes only president himself. This is at least reflected in the cases that occurred during the reign of former President Abdurrahman Wahid (Gus Dur). At the time served as president, Gus Dur dismissed easily Ministry of Social Affairs, Ministry of Information, and Youth and Sports Ministry for not having a role and an important function in the administration of government. Thus, if the bill eventually passed the State Ministry of the Act by the Parliament, the President can not act arbitrarily in the form or dissolve a department or Ministry of State.

On the whole substance of the draft bill that the State Ministry is currently in the process of discussion in the level of a special committee (special committee) House of Representatives consists of eight chapters and 25 articles. When studied and reviewed comprehensively, on the one side of the material substance contained in the bill can be said Minister of State is good enough, because it contains rules regarding the prohibition of dual office minister. In Article 17 of Ministry of the bill states that prohibited ministers concurrently / or take charge of other state agencies, political organizations, commissioners or directors of state or private companies and take charge of other organizations that are funded from the budget / budget. However, on the other hand draft substance which is the Ministry of State Parliament the proposed initiative, had strayed far from the intent and purpose of the early establishment of the Bill. Even the draft can be said to have violated the State Ministry prisip principle-presidential system of government contained in the body of the 1945 Constitution and the potential 'delete' and 'amputate' prerogatives possessed by the President as head of state and head of government in determining the amount of the State Ministry.

This reflected at least in some formulations the articles contained in the draft State Ministry. Several formulations these articles are, first, the formulation of Article 2, paragraph 2, which regulate the mention of the name or type of State Ministry of Home Ministry, Ministry of Basic and Special Ministry. Second, the formulation of Article 7 paragraph 1, 2, 3 are arranged on the classification of cabinet members to the State Ministry of Home Ministry, Ministry of Basic and Special Ministry, as well as restrictions on the Ministry of State can be formed by the President. Third, the formulation of Article 13 paragraph 2, which regulate the need for parliamentary approval in the case of the President will shape and the State Ministry mengabungkan Basic. Fourth, the formulation of Article 14 paragraph 1 which regulates the prohibition on the President to change the name of Ministry of Home and the formulation of Article 14 paragraph 2, which regulate the need for the approval of Parliament in terms of the President to make changes to the name of Ministry of Basic. Fifth, the formulation of Article 15 paragraph 1 which regulates the president dissolved the prohibition for the State Ministry of Home and the formulation of Article 15 paragraph 2, which regulate the need for parliamentary approval in the case of dissolution of the State Ministry of Basic.

Base on the above issues, there is now no other alternative, which must exit the current elected to end its controversial draft bill is to make the State Ministry of the reforms and improvements of the draft. Steps you can take is to immediately make changes (revisions) to comprehensively on the substance of the State Ministry draft. This is due to the need for the State Ministry of Law is very urgent at the moment. In addition, the existence of the State Ministry of Law is absolutely necessary for building the system of government can run more effective, stable, and also productive. So that the Indonesian people closer to the ideals of justice and prosperity for all Indonesian people.

At the time of the reform push and pressure from the people and to launch an eradication of corruption, collusion and nepotism (KKN) is so great in the New Order government, the government and the House of Representatives (DPR) make improvements to Law No. 3 Year 1971 on Eradication of Corruption became Law No. 31 Year 1999 on Eradication of Corruption act. The next set of institutions / sixth team, through a Presidential Decree. 127 In 1999, a Commission inspection team Wealth of State Officials (KPKPN). Institution / seven teams established by Government Regulation (PP) No.. 19 In 2000 a joint team eradication of corruption (TGTPK). Finally, after the dissolution of established institutions TGTPK / eight teams, based on Law No.30/2002 with the name Pemerantasan Corruption Commission (KPK).

Although currently most people who rate the performance of the Commission is still less than satisfactory, but if a comprehensive evaluation of the performance of eight institutions was formed to combat corruption, the Commission's performance as a result of the new institution "for the rest of the corn" in the anti-corruption efforts can be said to be good enough and satisfactory than seven institutions had formed a kind of before. This can be evidenced from the success of the Commission reveals many cases of corruption of state officials. Many of those state officials who eventually became defendants sentenced to prison even lead to no light. Several corruption cases of government officials who successfully dismantled by the Commission among other things, the purchase of helicopters corruption cases committed by the former Governor of Nanggroe Aceh Darussalam Abdullah Puteh, corruption cases that occurred in the General Elections Commission (KPU), which involves Samsyudin KPU Chairman Nazaruddin and Mulyana W. Kusumah. In fact, the Commission managed to uncover performance and prove that the mob justice has been roaming the world to dismantle our judicial bribery case involving a lawyer Probosutejo, Harini Wijoso, and employees of the Supreme Court Pono Waluyo.

Apparently, the results of the Commission's performance is quite successful in uncovering cases of corruption do not reap something positive, the response that occurs only made the corruptors feel hot and full of anger that caused resistance implications in the form of counterattack corruptors (corruptors fight back) which is currently enjoying his sentence in the "hotel without cost". Counterattack strategy corruptors done elegantly and systemic. This is in order for the Commission as the front guard of corruption in Indonesia has become a toothless tiger with no power. His form at the end of last August, they are the corrupt through his legal request a judicial review. The applicant did request testing efforts (judicial review) of Law No. 30/2002 against the 1945 Constitution to Mahkmah Constitutional Court (MK) with registration number No.12/PUU-IV/2006 case, No.16/PUU-IV/2006, and No. 19/PUU-IV/2006.

Of the three applications above, there are six main issues that the applicant submitted. First, the existence of the Commission. Second, the existence of a special court (ad hoc) corruption (Corruption). Third, the implementation of the principle of presumption of innocence (presumtion of innocent) associated with the absence of authority for the Commission issued a Letter of Termination Investigation and Prosecution (SP3). Fourth, the existence of wiretapping and recording instruments. Fifth, the provisions / rules and the application of the phrase "a troubling concern the public" in article letter b Law Commission. Sixth, the application of retroactive principle in handling criminal cases of corruption by the Commission.

When examined, the corruptors backlash to the Commission through a judicial review of Law No. 30/2002 cause anxiety and concern various circles, especially for those who concentrated on the eradication of corruption in Indonesia. Because it is not impossible the end of the story behind the corruptors attack resulted in the dissolution of the Commission by the Court. Reflecting on the experience shows Teams Eradicating Corruption (TGTPK) had disbanded by presidential decree forming the test in the Supreme Court (MA). In addition, the Court also noted two times to correct the "bang on" the eradication of corruption through its decision, the Law Commission states can not retroactively effective (retroactively) so that the Commission can not investigate corruption cases before the enactment of Law Commission in 2002, and declared the offense evidentiary material in the follow corruption can no longer be used. Then the question is what steps and strategies that can be done to save the Commission from the threat of liquidation?

The steps and strategies that can be done now to save the Commission is, first, to mobilize support and build the discourse and public opinion that supports the existence of the Commission. Since we all agree that corruption is a crime of extraordinary (extraordinary crime) who require treatment in a way that non-conventional / abnormal. Second, experts and professors who asked to be expert witnesses in court cases judicial review of the Act the Commission can provide insights that justify and support the existence of the Commission. To fight corruption because it takes a law enforcement agency that has authority as the Commission superbody. The second step of this strategy is very urgent to be done as a way out in saving the Commission before the Court decision set. In addition, it is important to do because the Court is a trial court opinion, and checks on the Court did not speak the fact that there are real, but based on the opinions and thoughts, and theories alone are not like conventional courts to prioritize the facts revealed dipersidangan. Finally, the trump card that could save the Commission currently completely in the hands of the guardian of the nine judges of the constitution.

We hope that the judges of the Constitutional Court judges is not a figure like the one described by the great philosopher and constitutional laws of France Montesquieu (1689-1755) the judge who just became a trumpet / mouthpiece Act (de la bouce de la Loi). But the judge who becomes the funnel's sense of justice. Because after the existence of the Commission must be preserved and saved. If not, prepare for this country would be "Heaven" for the corrupt.

Selengkapnya ..

Save KPK

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.
Published by: The Daily Pikiran Rakyat, 28 Nopember 2006.

LISTENED to reports on the new corruption survey released by Transparency International (TI) in 2006 is certainly our pleasure and pride. This is because, Indonesia based on data released by TI regarding corruption perception index (GPA), a 2.4 GPA and was ranked the 130th of 163 countries. This figure is better than the year 2005, IPK Indonesia in 2005 reached 2.2 and was ranked the 137th of 159 countries surveyed. Besides Indonesia scores also rose this year and 0.2 points compared with 2005 last year, Indonesia's ranking this year a little better. In 2005, Indonesia sits on the sixth position of the 158 most corrupt countries in the world, while Indonesia is currently ranked the seventh most corrupt country among 163 countries. Although the results of a survey of IT is still considered unsatisfactory by many, but at least if evaluated the results gave a positive glimmer of hope in efforts to eradicate corruption in Indonesia. Surely we all agree that the progress and success of the eradication of corruption, not apart from the role and contribution of the Corruption Eradication Commission (KPK) in eradicating corruption in Indonesia.

Since the beginning of its presence, the Commission has invited a lot of public attention, many people hoped the Commission could be a solution to the logjam of corruption that occurred during this. Follow up his various moves were made by the Commission as an effort in the eradication of corruption in Indonesia.
Please note, if viewed from the historical aspect of corruption in Indonesia, the Commission is not the institution or the first team was formed to eradicate corruption in Indonesia. History records from the period 1967-2002, had eight institutions / teams eradication of corruption was formed as an effort to eradicate corruption. Once in the New Order (New Order) the establishment of institutions / teams formed to eradicate corruption from the first time on 2 December 1967, through Presidential Decree. 228/1967 Corruption eradication team name. Institution / t im both, established by Presidential Decree. 12/1970 dated January 31, 1970 Four Commission team name. Institution / third team was formed in 1970 a team of Anti-Corruption Committee (KAK). Institution / fourth team was formed in 1977 through Presidential Instruction No.. 9 / 1977 name OPSTIB team. Institution / fifth team, in 1982 the Corruption Eradication Team (TPK) is turned on again. However, Presidential Decree regulating ironically more about the duties and authority of TPK was never realized.

At the time of the reform push and pressure from the people and to launch an eradication of corruption, collusion and nepotism (KKN) is so great in the New Order government, the government and the House of Representatives (DPR) make improvements to Law No. 3 Year 1971 on Eradication of Corruption became Law No. 31 Year 1999 on Eradication of Corruption act. The next set of institutions / sixth team, through a Presidential Decree. 127 In 1999, a Commission inspection team Wealth of State Officials (KPKPN). Institution / seven teams established by Government Regulation (PP) No.. 19 In 2000 a joint team eradication of corruption (TGTPK). Finally, after the dissolution of established institutions TGTPK / eight teams, based on Law No.30/2002 with the name Pemerantasan Corruption Commission (KPK).

Although currently most people who rate the performance of the Commission is still less than satisfactory, but if a comprehensive evaluation of the performance of eight institutions was formed to combat corruption, the Commission's performance as a result of the new institution "for the rest of the corn" in the anti-corruption efforts can be said to be good enough and satisfactory than seven institutions had formed a kind of before. This can be evidenced from the success of the Commission reveals many cases of corruption of state officials. Many of those state officials who eventually became defendants sentenced to prison even lead to no light. Several corruption cases of government officials who successfully dismantled by the Commission among other things, the purchase of helicopters corruption cases committed by the former Governor of Nanggroe Aceh Darussalam Abdullah Puteh, corruption cases that occurred in the General Elections Commission (KPU), which involves Samsyudin KPU Chairman Nazaruddin and Mulyana W. Kusumah. In fact, the Commission managed to uncover performance and prove that the mob justice has been roaming the world to dismantle our judicial bribery case involving a lawyer Probosutejo, Harini Wijoso, and employees of the Supreme Court Pono Waluyo.

Apparently, the results of the Commission's performance is quite successful in uncovering cases of corruption do not reap something positive, the response that occurs only made the corruptors feel hot and full of anger that caused resistance implications in the form of counterattack corruptors (corruptors fight back) which is currently enjoying his sentence in the "hotel without cost". Counterattack strategy corruptors done elegantly and systemic. This is in order for the Commission as the front guard of corruption in Indonesia has become a toothless tiger with no power. His form at the end of last August, they are the corrupt through his legal request a judicial review. The applicant did request testing efforts (judicial review) of Law No. 30/2002 against the 1945 Constitution to Mahkmah Constitutional Court (MK) with registration number No.12/PUU-IV/2006 case, No.16/PUU-IV/2006, and No. 19/PUU-IV/2006.

Of the three applications above, there are six main issues that the applicant submitted. First, the existence of the Commission. Second, the existence of a special court (ad hoc) corruption (Corruption). Third, the implementation of the principle of presumption of innocence (presumtion of innocent) associated with the absence of authority for the Commission issued a Letter of Termination Investigation and Prosecution (SP3). Fourth, the existence of wiretapping and recording instruments. Fifth, the provisions / rules and the application of the phrase "a troubling concern the public" in article letter b Law Commission. Sixth, the application of retroactive principle in handling criminal cases of corruption by the Commission.

When examined, the corruptors backlash to the Commission through a judicial review of Law No. 30/2002 cause anxiety and concern various circles, especially for those who concentrated on the eradication of corruption in Indonesia. Because it is not impossible the end of the story behind the corruptors attack resulted in the dissolution of the Commission by the Court. Reflecting on the experience shows Teams Eradicating Corruption (TGTPK) had disbanded by presidential decree forming the test in the Supreme Court (MA). In addition, the Court also noted two times to correct the "bang on" the eradication of corruption through its decision, the Law Commission states can not retroactively effective (retroactively) so that the Commission can not investigate corruption cases before the enactment of Law Commission in 2002, and declared the offense evidentiary material in the follow corruption can no longer be used. Then the question is what steps and strategies that can be done to save the Commission from the threat of liquidation?

The steps and strategies that can be done now to save the Commission is, first, to mobilize support and build the discourse and public opinion that supports the existence of the Commission. Since we all agree that corruption is a crime of extraordinary (extraordinary crime) who require treatment in a way that non-conventional / abnormal. Second, experts and professors who asked to be expert witnesses in court cases judicial review of the Act the Commission can provide insights that justify and support the existence of the Commission. To fight corruption because it takes a law enforcement agency that has authority as the Commission superbody. The second step of this strategy is very urgent to be done as a way out in saving the Commission before the Court decision set. In addition, it is important to do because the Court is a trial court opinion, and checks on the Court did not speak the fact that there are real, but based on the opinions and thoughts, and theories alone are not like conventional courts to prioritize the facts revealed dipersidangan. Finally, the trump card that could save the Commission currently completely in the hands of the guardian of the nine judges of the constitution.

We hope that the judges of the Constitutional Court judges is not a figure like the one described by the great philosopher and constitutional laws of France Montesquieu (1689-1755) the judge who just became a trumpet / mouthpiece Act (de la bouce de la Loi). But the judge who becomes the funnel's sense of justice. Because after the existence of the Commission must be preserved and saved. If not, prepare for this country would be "Heaven" for the corrupt.

Selengkapnya ..