Legal Literacy - This article discusses the history and development of Constitutional Court Indonesia, as well as the idea of judicial independence. Starting from the transformation of the constitutional paradigm to the implementation of the principle of checks and balances, this article outlines the importance of the Constitutional Court in maintaining constitutional supremacy and facing current challenges.
Constitutional Paradigm Transformation in Constitutional Amendments
The amendment of the 1945 Constitution as a result of the reform movement has massively fostered transformation of the Indonesian constitutional system in a short time, considering that the amendment only took place in an interval of four years and is relatively very short when compared to the juridical historicity of the Unitary State of the Republic of Indonesia. Concrete evidence is the transformation of the People's Consultative Assembly (MPR) supremacy paradigm into constitutional supremacy. The pre-amendment Constitution of the Unitary State of the Republic of Indonesia placed the MPR as a representation of people's sovereignty, so the MPR occupied a seat as the highest state institution.[1] This MPR supremacy paradigm has transformed into a constitutional supremacy paradigm that places the constitution as the sole highest entity representing people's sovereignty.[2]
This transformation of the supremacy paradigm also has implications for the principles adopted in the constitutional system. Before the amendment, the principle adopted in the constitutional system was the principle of division of power. This principle places an institution as the highest institution at the top of power, namely the MPR, and the power of the MPR is distributed in a vertical concept to other state institutions; such as the President, the Supreme Court (MA), and the House of Representatives (DPR). All institutions that receive delegation of power from the MPR are seated equally and given the status of high state institutions. This constitutional practice prevents a clear separation of the functions of state institutions (MPR RI Study Body, 2017: 2-3).
Indonesian constitutional practice no longer adheres to conservative principles and has switched to adopting new principles that began to be applied after the Amendment to the 1945 Constitution. The principle of check and balances and separation of power which began to be applied in the Indonesian constitutional system after the Amendment to the 1945 Constitution, gave rise to fairly serious normative implications. The problem of abuse of power caused by the inseparability of branches of power is minimized by imposing limitations on power, or separation of power. The orientation is that every form abuse of power can be restored to its normative position or returned to the constitutional corridor. (Hady, 2016: 44).
The affirmation of the implementation of the constitutional supremacy paradigm, or what Palguna (2020: 28 and 29) calls constitutional democracy in the Indonesian constitutional system is, among other things, the establishment of the Constitutional Court or MK. Palguna (2020: 29) also mentions that due to the demand that the constitution must be obeyed, this institution was born, which was given the authority to “force†such obedience. Thus, the constitution is not only a frozen text, but can become a “living document†that gives shape and direction to political power in a country (Palguna, 2020: 29).
The Initial Idea of Forming a Judicial Institution
John Locke's idea in Trias Politica is a visionary idea that influences other similar ideas. The Trias Politica initiated by John Locke divides state power into executive, legislative, and federative powers. The main idea of John Locke's thought is considered imperfect because it merges judicial power into executive power (Magnis-Suseno, 2023, p. 279). John Locke even in his idea did not support the independence and impartiality of judicial power because he considered that judicial power was part of executive power (Buana, 2023: 110).
In his book L'esprit des lois, Montesquieu perfected the idea of Trias Politica initiated by John Locke with his Trias Politica. State power, according to him, is divided into three powers; namely legislative, executive, and judicial. The emphasis of the Trias Politica idea that he constructed is the separation of the judicial branch from the executive branch. Judicial or judicial power must be completely impartial and independent and in decision-making not influenced by any branch of power (Magnis-Suseno, 2023: 281).
Comments (0)
Write a comment