DEVELOPMENT OF LAW AND LAW ENFORCEMENT IN INDONESIA
Indonesia idealized and aspired to by the founding fathers as a State law (Rechtsstaat /
The Rule of Law). 1945 Constitution, Article 1, paragraph (3) asserts that "Indonesia is a
State of Law". However, how the blueprints and design of country macro elaboration of
the idea that law, has not been comprehensively formulated. There was only the
development of sectoral areas of law. Therefore, the law should be conceived and
developed as an integrated system. Moreover, the country was about to be understood as
a legal concept, namely as the State Law. In law as a unified system are (1) institutional
elements (institutional elements), (2) elements of the rule Siwak (instrumental element),
and (3) elements of the behavior of legal subjects bearing rights and duties determined by
the norms that rule (element subjective and cultural). The third element of the legal
system that includes (a) the activities of law-making (law making), (b) execution or
enforcement activities (administrating law), and (c) activities for violations of the law
courts (adjudicating law). Usually, the last activity is also commonly referred to as a law
enforcement activities in the strict sense (law enforcement) are in the field of crime
involving the role of police, prosecutors, advocates, and in the field of civil justice or
involve the role of an advocate (lawyer) and the judiciary. In addition, there are also other
activities that are often overlooked, namely: (d) socialization and education of law (law
socialization and education law) in the broadest sense that is also related to (e) the
management of legal information (law information management) as an activity
supporting. These five activities are usually divided into three areas of state power,
namely (i) the functions of legislation and regulation, (ii) the executive and
administrative functions, and (iii) the judiciary or judicial functions. Legislative organ is
the institution of parliament, is the executive organ of government bureaucracy, while the
judicial organ is the bureaucratic apparatus that includes police enforcement, prosecution
and courts. All of it must also be connected with each hierarchy from highest to lowest
organ, which is associated with the apparatus of the central, provincial officials, and
officials at the district / city.
In all the elements, components, and hierarchical aspects of the systemic and interrelated
to each other's, which included understanding the legal system should be developed
within the framework of State of Indonesia under the 1945 law. If the dynamics with
respect to all aspects, elements, hierarchy and the device is not working in a balanced and
synergistic, then the law as an integrated system also can not be expected to erect as they
should. For example, because we inherited the tradition of Continental European law
(civil law), we tend to shed so much attention on law-making activities (law making), but
not as much attention to the activities of law enforcement (law enforcing). In fact, we too,
just like that adheres to the paradigm and the doctrine of thinking prevalent in the civil
law system, namely the enactment fiktie theory that assumes that once a set of legal
norms, then at that time everyone thought out law. Ignorance of the law a person can not
exonerate him from prosecution. This theory is also the justification given by the
universally acknowledged principles, namely equality before the law (equality before the
law). Rich people in Jakarta should be treated equally by law with the poor in remote
areas of the Mentawai (West Sumatra), in the Baliem Valley (Papua), tribal stronghold on
the border of Jambi, South Sumatra, or a remote tribe in the small islands throughout the
Fiktie above theory is fiktie utopian nature or course, because it does not reflect the actual
reality. To the environment of developed countries like the Netherlands and especially
small with the level of welfare and equitable knowledge society, is certainly no problem
with that theory fiktie. In a homogeneous society like that of legal information available
in the community are symmetrical. But in a country where such a large territory, so much
does the number of inhabitants, as well as poor and underdeveloped welfare state and
education as well as Indonesia, of course, the legal information system is available in the
community are not symmetrical. It would be unfair to impose the rule of law applies to
those things that did not understand, is not involved, and no reasonable knowledge of the
norms that rule applied to him. If the norms that rule the process of criminalization, of
course, the person threatens to become a criminal without his knowing it. Therefore, in
addition to the presence and in the law-making activities (law making) and enforcement
(law enforcing), required activities, the penal law (law socialization) that tend to be
ignored and considered not important for this. In fact, this is the key rule of law. No
social basis to realize the rights and obligations in law, then any law that is made will not
be effective, will not be straight, and will not be adhered to in earnest.
Therefore, a comprehensive understanding of the law as an integrated system becomes
very important to do. Development strategies or national development law to realize the
idea of Rule of Law (Rechtsstaat or the Rule of Law) also should not be stuck just
oriented to any law, or just to look at one element or aspect of the overall legal system of
the above. That is why, I often put forward as a nation is important we develop and
formulate what we mean by a conception of the State Law Indonesia mandated in the
1945 Constitution, especially now been confirmed in the formulation of the provisions of
Article 1 paragraph (3) of the 1945 Constitution. All agencies or institutions that have let
the law be seen as part of the whole legal system needs to be developed within the
framework of State Law. Therefore, Indonesia needs to devise a blueprint, a macro
design of the State Law and the Legal System Indonesia we want to build and then set it
in the future.
A. ESTABLISHMENT AND LAW REFORM
We've managed to make constitutional reform on a large scale. If the 1945 Constitution
which includes only the provisions of 71 items in it, then after four changes, the 1945
Constitution now contains 199 items rule.
The 1945 changes made gradually and became one of the agenda of the Annual Session
of the Assembly from 1999 to the fourth change in the 2002 MPR Annual Session of the
agreement along with the establishment of a Constitutional Commission tasked with
doing a comprehensive assessment of the 1945 change by Legislative Act No..
I/MPR/2002 on the Establishment of the Constitutional Commission.
The first change made in the MPR Annual Session of 1999, including Article 5,
paragraph (1), Article 7, Article 9, Article 13 paragraph (2), Article 14, Article 15, Article
17 paragraph (2) and (3), Article 20 , and Article 22 of the 1945 Constitution. Under the
provisions of the articles are amended, the First Amendment of the 1945 Constitution is
to limit presidential powers and strengthen the position of the House of Representatives
(DPR) as the legislature.
The changes made in the annual session of the Assembly of 2000 which includes Article
18, Article 18A, Article 18B, Section 19, Article 20 paragraph (5), Article 20A, Article
22A, Section 22B, Chapter IXA, Section 28A, Article 28B, Section 28C , Chapter 28C,
Section 28D, Section 28E, Article 28F, Chapter 28G, Section 28H, Article 28I, Article
28J, Chapter XII, Article 30, Chapter XV, Section 36A, Article 36B and Section 36C of
the 1945 Constitution. Both of these changes include the problems of the country and the
division of local government, first in terms of perfecting changes to strengthen the
position of the House of Representatives, and the detailed provisions on human rights.
Changes specified in the Third Annual Session of the Assembly of 2001 and the change
or supplement the provisions of Article 1 paragraph (2) and (3), Article 3, paragraph (1),
(3), and (4), Article 6 paragraph (1) and (2), Article 6A paragraph (1), (2), (3), and (5),
Article 7A, Section 7B paragraph (1), (2), (3), (4), (5) , (6), and (7), Article 7C, Article 8,
paragraph (1) and (2), Article 11 paragraph (2) and (3), Article 17 paragraph (4), Chapter
VIIa, Article 22C Paragraph (1 ), (2), (3), and (4), Article 22D paragraph (1), (2), (3), and
(4), Chapter VIIB, Article 22E Paragraph (1), (2), ( 3), (4), (5), and (6), Article 23
paragraph (1), (2), and (3), Article 23A, Section 23C, Chapter VIIIA, Article 23E
paragraph (1), (2 ), and (3), Article 23F Paragraph (1), and (2), Article 23G Paragraph (1)
and (2), Article 24 paragraph (1) and (2), paragraph 24A (1), (2 ), (3), (4), and (5),
paragraph B of Article 24 (1), (2), (3), and (4), Article 24C paragraph (1), (2), (3) , (4),
(5), and (6) of the 1945 Constitution. The material of the 1945 Constitution Third
Amendment includes provisions on the basis principles state, state institutions and
relations between state institutions, and the provisions on the General Election.
The fourth change made in the MPR Annual Session of 2002. And changes or additions
to the Fourth Amendment includes Article 2 paragraph (1), Article 6A paragraph (4),
Article 8, paragraph (3), Article 11 paragraph (1), Article 16, Section 23B, Article 23D,
Article 24 paragraph ( 3); Chapter XIII, Article 31 paragraph (1), (2), (3), (4), and (5),
Article 32 paragraph (1), (2), (3), and (4); Chapter IV, Article 33 paragraph (4) and (5),
Article 34 paragraph (1), (2), (3), and (4), Article 37 paragraph (1), (2), (3), ( 4), and (5),
the Transitional Provisions of Article I, II, and III; Rules Additional Articles I and II of
the 1945 Constitution. Material changes to the Fourth Amendment is a provision of the
institutional relations between the state and state institutions, the abolition of the Supreme
Advisory Council (DPA), the provision of education and culture, the provision of
economic and social welfare, and the transition rules and additional rules.
These changes not only editorial changes, but also involves a paradigm shift of thinking
is very basic. Therefore, soon after the constitutional reform agenda (constitutional
reform), we need to continue with the agenda of legal reform (establishment and renewal
of the law) are also massive. If we look at the provisions of the 1945 Constitution was
changed after four times, there are 22 grain provision stating "diantur with law" or "shall
be further regulated by law", the provisions of item 11 which states "governed by law" or
"shall be further dlaam law", and 6 eggs provision states "defined by law.
Areas of law which requires the establishment and renewal can be grouped according to
the required fields, namely:
A. Politics and government.
2. Economics and business.
3. Field of social welfare and culture.
4. Structuring the field of legal systems and apparatus.
As a consequence of the supremacy of the constitution and the hierarchy of legislation in
a legal system, then change the constitution requires that amendments to legislation in the
legal system, and the exercise by the authorities. Similarly, the 1945 changes are pretty
basic and includes almost all of the provisions contained therein, to be followed by
changes in legislation under it and its implementation by the competent organ. The
provisions of legislation that has been sourced on certain provisions in the 1945
Constitution before the change to be seen again for compliance with the provisions of the
As a unified system of law, efforts to change legislation to conform with the 1945
changes should be an integral part of the overall development of national laws. Therefore,
changes in the legislation should be well planned and participatory program of national
legislation as well as the form of legislative review. National legislation program should
be developed first and foremost is to implement the provisions of the 1945 Constitution.
Under the provisions of the 1945 legislation can be elaborated to be made in the national
legislation program in political, economic, and social.
Besides, people can also apply for a constitutional review to the Constitutional Court
against the Act which are considered detrimental to their constitutional rights in the 1945
Constitution as amended. Communities can also apply to the Supreme Court judicial
review against the legislation under the Act are considered to be contrary to the laws and
regulations is higher.
Decisions Act test against the 1945 Constitution have been made by the Constitutional
Court against a variety of proposed petition must also be considered in development of
national laws, especially changes in legislation. In those rulings contain these terms and
concepts related to the understanding of a provision in the constitution. Until now there
have been various decisions of the Constitutional Court in political, economic, social and
related provisions of the 1945 Constitution.
The laws need to be prepared and updated not only in the form of the Act but also
government regulation, Presidential Regulation, regulation, regulation in the high state
institutions and specialized agencies and other independent like the Supreme Court, the
Constitutional Court, Bank Indonesia, the Commission General Election, and so forth.
Similarly, in these areas, reform and legal establishment also takes the form of local
regulation and later can also be the regulation of Governors, Regents Rules and
Regulations mayor. To accommodate the needs at the local level, including
accommodating the development of norms of customary law who live in rural
communities, can also be formed Village Regulations. In addition, the nomenclature and
form of its legal system also needs to be addressed, for example, necessary to distinguish
clearly between rules (regels) which can be used as objects to the determination of
judicial review of administrative decisions (beschikking) which can be used as the object
state administrative courts, and the judge's decision (the verdict) and fatwa (legal
B. Institutional Arrangement
In addition to the changes and the addition of provisions grains, the 1945 changes also
resulted in a change in position and ties some state institutions, the elimination of certain
state institutions, and establishment of new state institutions.
In any discussion of state institutions, there are 2 (two) constituents that are interrelated,
ie organ and functie. Organ is a form or container, while functie is content; organ is the
status of the form (English: form, Germany: vorm), whereas the movement of containers
functie it suits the purpose of creation. In the text of the Constitution of the Republic of
Indonesia Year 1945, the organs in question, there are mentioned explicitly by name, and
some are mentioned explicitly only function. There is also a body or organ called that
neither his name nor function or authority shall be governed by the regulation is lower.
It can be argued that in fact called or named in the 1945 Constitution, there are more than
34 pieces of the organ, office, or institution. Organ, position, or the institutions referred to
(I) the People's Consultative Assembly (MPR) set forth in Chapter II;
(Ii) the President of the Republic of Indonesia and
(Iii) the Vice President set forth in Chapter III;
(Iv) Council consideration of the president under Article 16 of the 1945 Constitution;
(V) Ministry of State set out in Chapter V;
(Vi) The Minister of Foreign Affairs, Minister of the Interior, and Defense Minister
jointly as triumpirat provided for in Article 8 paragraph (3) of the 1945 Constitution;
(Vii) The Minister of Home Affairs as tirumpirat provided for in Article 8 paragraph (3)
of the 1945 Constitution;
(Viii) Ministry of Defence as triumpirat in Article 8 paragraph (3) of the 1945
(Ix) the Ambassador provided for in Article 13 paragraph (1), (2), and (3) of the 1945
(X) Council provided for in Article 13 paragraph (1) of the 1945 Constitution;
(Xi) the Provincial Government set out in Chapter VI, which includes:
(Xii) the Governor / Head of the provincial government;
(Xiii) the Provincial Parliament (DPRD province);
(Xiv) Government of the District include:
(Xv) Regent / Head of Local government districts, and
(Xvi) the House of Representatives District (local parliament);
(Xvii) Regional Municipality;
(Xviii) The Mayor / Head of Local Government, and
(Xix) the City Council of Regional Representatives (DPRD);
(Xx) House of Representatives of the Republic of Indonesia is set forth in Chapter VII of
the 1945 Constitution;
(Xxi) of the DPD set out in Chapter VIIa;
(Xxii) the Commission by the organizers of election legislation called the National
Election Commission (KPU) in Section VIIB and further regulated by law;
(Xxiii) The central bank specified in Section VIII and shall be further regulated by law;
(Xxiv) the State Audit Board (BPK) is set forth in Chapter VIIIA;
(Xxv) The Supreme Court (Chapter XIV);
(Xxvi) The Constitutional Court (Chapter XIV);
(Xxvii) of the Judicial Commission (Chapter XIV);
(Xxviii) the Indonesian military (TNI) (Chapter XII);
(XXIX) of Police of the Republic of Indonesia (Chapter XII).
(Xxx) Army (TNI AD) are provided for in Article 10 of the 1945 Constitution;
(Xxxi) Navy (TNI AL) provided for in Article 10 of the 1945 Constitution;
(Xxxii) Air Force (TNI AU) set out in Article 10 of the 1945 Constitution;
(Xxxiii) Unit of local government which is special or privileged as provided in Article
18B paragraph (1) of the 1945 Constitution;
(Xxxiv) Other bodies whose function is related to the judicial authority provided for in
Article 24 paragraph (3) of the 1945 Constitution.
From at least the 34 institutes mentioned above, there is a substance of authority in the
1945 Constitution has not been determined, for example, the central bank. In Section 23D
of the 1945 Constitution simply prescribed, "the State has a central bank that
arrangement, position, authority, responsibility, and independence regulated by law".
That is, what is the authority of the central bank itself will still be regulated by law. That
is, the Constitution did not provide any authority to the central bank by law and by
custom the history has been called the Bank Indonesia. 1945 Constitution only mentions
the nature of the authority stated that the central bank is independent, although
independence itself remains to be regulated by law.
While the electoral commission, although his name has not been known with certainty,
but its authority as the organizers have confirmed. In Article 22E Paragraph (5) of the
1945 Constitution specified that the "elections organized by the election commission of a
national, permanent and independent". This means that the electoral commission that is
organizing the elections, and as an organizer he was a national, permanent, and
Therefore, both central bank and the organizers of the election commission can still be
seen aspects of the constitutionality of the authority. If the operational implementation of
the authority or the nature of that authority to deviate from the provisions of the
Constitution, then such things can be the object of dispute in court. As far as the
constitutionality of aspects of its authority, can not be no judicial forum is the
Of the 34 organs or institutions mentioned above are in no way determined the rights or
powers in the 1945 is (i) Ambassador (ii) Council, (iii) Army, (iv) Navy and ( v) the Air
Force. Organs or institutions other than banks and the central election commission and
the fifth last organ is generally called the firm name with the authority which is also
clearly defined in the 1945 Constitution. Therefore, by taking into account the electoral
commission and the organizers of the central bank, it can be said that the 1945
Constitution, there are 28 institutions or organs of state which has the constitutional
authority or the authority granted by the 1945 Constitution.
In addition, in Article 24 paragraph (3) of the 1945 Constitution prescribed, "Other
bodies that function is related to the judicial authority provided for in the law". Referred
to other agencies in this paragraph include the Attorney General. Attorney General is not
mentioned explicitly in the 1945, but its functions relating to the judicial authorities.
Attorney General's Office regarding this case, further stipulated in the law or even by a
separate law. However, its position in the unified court system and the democratic rule of
law is clearly unconstitutional as important (constitutional importance) with the State
Police who are specifically regulated in the provisions of Article 30 of the 1945
Constitution. That is, it is not arranged in the 1945 Attorney General's Office, compared
with the regulation of police can not be used as an excuse to declare that the State Police
is more important or higher than the Attorney General's constitutional position.
Constitutionally, both are equally important in order to guarantee the rule of law and
justice in the realization of the ideals of the efforts of law (rechtsstaat or the rule of law).
Examples of the prosecutor as an institution covered by the words "other bodies"
according to Article 24 paragraph (3) is also in line with the background of the
formulation of the provisions of Article 24 paragraph (3) as described above. At first, the
idea evolved to include the regulation of the prosecutor in the chapter on the 1945
Judicial Power. This idea is still listed in the 1945 Plan Amendment was left after the
adoption of the 1945 Amendment in 2001. However, after the text of the Fourth
Amendment was passed in 2002, the provisions of this prosecution does not have an
agreement to be included explicitly in the article. Instead, came the formulation of Article
24 paragraph (3) mentioned above. Therefore, one of the bodies referred to in this
paragraph is indeed the prosecution agency. However, because otherwise there other
agencies, then opened the possibility of some other entity associated with the judicial
authorities, in addition to the prosecutor.
Thus, there is the possibility of the other bodies that more than one, so the total number
of state agencies under the 1945 Constitution is also more than 34 pieces. For example, in
addition to prosecution, other agencies that also deals with the functioning of judicial
authorities is the Corruption Eradication Commission (KPK), the Advocate, the National
Commission on Human Rights, and the officials who belong to the civil servants'
understanding of the investigator (investigators), such officer customs, tax officials,
officers of the Road Transport Traffic (DLLAJR), and even including the Navy that have
a certain authority in the field of investigation in cases of criminal acts at sea. In other
words, when coupled with the institutions or other bodies whose function is related to the
judicial authorities referred to in Article 24 paragraph (3) of the 1945 Constitution, it is
clear that the number of state agencies that are called explicitly and implicitly in the 1945
numbered more of 34 pieces.
To-34 countries or more organ itself can also be divided into several groups. First, the
state agency which may be cited as the State Agency (LTN), namely (i) The President
and the Vice President as one institution, (ii) the House of Representatives, (iii) DPD (iv)
the Assembly; (v) the Court; ( vi) MA and (vii) CPC. If the President and the Vice
President as well as higher institutions of the country in terms of its officials, the number
to eight, each of which is represented by (i) the President; (ii) Vice President, (iii)
Chairman of the House; (iv) Chairman of the Council; (v) The Chairman of the
Assembly; (vi) The Chairman of the Constitutional Court; (vii) Chief Justice, and (viii)
Chairman of the CPC. Though now we no longer recognize the country's highest
institution, but the title as a senior state institutions continue to be relevant to the seven
state agencies associated with the above, represented by 8 eight job.
The second, or more than 34 institutions are listed several state institutions whose
authorities are directly given by the constitution, but it is not appropriate to be called a
high state institutions. The reason is (i) its function is merely supporting or auxiliary to
the main functions, such as the Judicial Commission is supporting to the judicial
authorities. Actual task of this commission is internal in the neighborhood of judicial
power, but so does effective oversight, ensured his position outside the independent and
equal to the Supreme Court and the Constitutional Court, (ii) an explicit constitutional
provision is only meant to assert an independent constitutional status, although it remains
in the realm or domain of public affairs, such as the Indonesian National Army and
National Police, (iii) determining the principal authority in the Constitution merely by
implication, not explicitly defined (strict sense), such as the organizer of the election
authority associated with the electoral commission. Even the election commission said
even this is not specified by name in the 1945 Constitution, but only confirmed by law, or
(iv) because of its institutional existence or authority not expressly specified in the
constitution, but only called to be determined is set by law, such as the existence of a
central bank under Section 23D of the 1945 will still be regulated by law. However, the
constitution specified that the authority should be independent. That is, by implication the
authority of the central bank is also set in the 1945 Constitution, though not the
substance, but only the quality or nature.
Thus, in addition to state agencies that are explicitly mentioned in the 1945 Constitution,
there are state agencies that have the same constitutional importance to the state agencies
named in the 1945 Constitution, although it was only regulated by or in law. Both are
regulated in the Constitution or that are only regulated by or in law, provided that both
have constitutional importance, can be categorized as a state institution that has a similar
degree of constitutional, but can not be called a high state institutions.
State institutions in this second category that meets the four criteria above are (i) The
Judicial Commission, (ii) the Minister and the Ministry of State, (iii) the Minister
Triumpirat; (iv) Council consideration of the president, (v) The central bank; (vi )
Indonesian National Army, (vii) The State Police, and (viii) Commission election
organizers. In addition to the eight state agencies that are called explicitly or implicitly in
the 1945 Constitution, there are state agencies that are created purely by statute, which
can be categorized as an institution that has the constitutional importance as well.
Institutions such as the mentioned example is (ix) the Attorney General; (x) Corruption
Eradication Commission (KPK), and (xi) National Human Rights Commission (Komnas
HAM), and so forth.
For example, the ombudsman has an important role in the framework of realization of the
principles of good governance in the context of public services (public services). Ideals of
the 1945 Constitution as a constitution of the welfare state or welfare state, which by
Bung Hatta had translated the words of the state board, is also associated with a function
such as ombudsman institutions can play an important role in the oversight and delivery
of public complaints will the poor quality of public services (public services) by
government bureaucracy. If the ombudsman institution is established by law, it is not
likely a later time may also develop the interpretation that this agency will also be
considered as an important institution in a constitutional manner.
Especially with regard to the Judicial Commission, it can be said that his position is
structurally equivalent to the Supreme Court and Constitutional Court. However,
functionally, its role is supporting (auxiliary) to the institution of judicial power. Judicial
Commission, although its function related to the judicial authorities, but did not perform
the function of judicial power. The Judicial Commission is not the norm of law
enforcement agencies (code of law), but the norm enforcement agencies conduct (code of
ethics). Besides this commission only deal with matters of honor, dignity, and the
behavior of judges, not by the judiciary or judicial authority is institutionally institutions.
Keberadaannyapun actually comes from the law into their own internal environment, ie
from the conception of the panel of judges that there is honor in the professional world of
justice and the Supreme Court. That is, previously, this function is internal ethical
auditors. However, to further ensure the effectiveness of the work in order to supervise
the conduct of judges, then the function is drawn out into external auditor whose position
is created equal with judges who are in institutions that are equal to the supervisor.
It is true that the authority of the Judicial Commission, as well as the Supreme Court and
the Constitutional Court, also set in the 1945 Constitution. Precisely, the Supreme Court
under Article 24A, the Judicial Commission under Article 24B, while the Constitutional
Court under Article 24C of the 1945 Constitution. However, the regulation concerning
the authority of the institution in the Constitution is not something absolutely must be
taken to mean that the institution is an institution that can be categorized as a high state
institutions. The reason is that the Indonesian Army and the State Police authorities also
set in the 1945 Constitution, namely in Article 30. However, the function of the army and
police organizations actually belong to the category of the functions of government
(executive), so the position can not be disederajatkan protokolernya with the President,
Vice President, House of Representatives, Parliament, Constitutional Court, Supreme
Court, and the CPC is only because the authorities are equally set in 1945 Constitution.
Similarly, the Judicial Commission is also not comparable to other high state institutions
simply because of its authority under Article 24B as well as soldiers and police authority
set forth in Article 30 of the 1945 Constitution.
Structurally, it can be said that the Judicial Commission is equal to the Supreme Court
and Constitutional Court. However, because of the nature of the specific functions and
are supporting (auxiliary), then the position protokolernya not need to be understood as
an institution that is treated the same as the Supreme Court and the Constitutional Court
and Parliament, the Assembly of Representatives, and the CPC. Because, the Judicial
Commission itself is not a state agency that runs the state power directly. The Judicial
Commission is not judicial, executive, let alone the legislature. He only serves to support
the establishment of the honor, dignity, and the behavior of judges as law enforcement
officials and agencies that perform the function of judicial power (Judiciary).
Thus, in performing its duties and authority, the Judicial Commission is also working
alongside the Supreme Court and the Constitutional Court, not by the government or the
people's representative institutions. In the work, the Judicial Commission, although it
remains to be independent, to be closer to the Supreme Court and the Constitutional
Court, not by government or by parliament. More specifically, the Judicial Commission
should take a distance so as not to become a political tool of politicians, both executive
and legislative positions, the government or the legislature to control and intervene in the
independence of judicial power.
Of the 34 or more state agencies that did not or have not specified the substance of
authority in the 1945 is also the central bank. Regarding the central bank, Section 23D of
the 1945 Constitution only specifies, "The state has a central bank that arrangement,
position, authority, responsibility, and independence regulated by law". That is, what is
the authority of the central bank itself will still be regulated by law. That is, the
constitution did not provide any authority to the central bank by law and by custom has
been referred to the history of Bank Indonesia. Specified in the 1945 just the nature of the
central bank's authority, which is required to be independent. As such, it must be
admitted, there remains the question of constitutionality related to the authority of the
central bank, not the substance, but the nature of that constitutional authority. That is, the
central bank could also face the issue of constitutionality of the authority which became
the subject matter in the Constitutional Court.
While the organizers of the election commission, even though his name has not been
known with certainty, but its authority as the organizers have confirmed. In Article 22E
Paragraph (5) of the 1945 Constitution specified that the "elections organized by the
election commission of a national, permanent and independent". This means that the
electoral commission that is organizing the elections, and as organizer of the elections he
required a national, permanent, and independent (independent).
Organs or agencies other than the central bank and the electoral commission is generally
called the firm name to the authority are clearly defined in the 1945 Constitution. It can
be said, from 34 state agencies that have been outlined above, there are 28 institutions
whose authority is defined both in general and in detail in the Constitution of the
Republic of Indonesia Year 1945. To-28 institutions are the ones who can be called as a
state institution that has the constitutional authority or the authority granted explicitly by
the Constitution of the Republic of Indonesia Year 1945.
The country's 28 institutions are: (i) the People's Consultative Assembly, (ii) the
President; (iii) Vice President, (iv) the Minister or the Ministry of State, (v) The Minister
of Foreign Affairs as Minister Triumpirat, (vi) the Minister of the Interior as the Minister
Triumpirat, (vii) as Defence Minister Minister Triumpirat, (viii) Council consideration of
the President; (ix) the Provincial Government; (x) the Governor / Head of the provincial
governments, (xi) the Provincial Parliament; (xii) Government City area, (xiii) The
Mayor / Chief Local Government, (xiv) the City Council of the Regional
Representatives; (xv) District Administration; (xvi) Regent / Head of local government
district; (xvii) the House of Representatives District; (xviii ) Unit of local government
which is special or privileged; (xix) House of Representatives; (xx) of the Regional
Representative Council, (xxi) the election commission; (xxii) the Supreme Audit Board,
(xxiii) the Supreme Court; (xxiv) the Constitutional Court; (xxv) of the Judicial
Commission; (xxvi) of the Central Bank; (xxvii) the Indonesian National Army, and
(xxviii) the Police of the Republic of Indonesia.
While the five organs or other position, the authority did not or have not been mentioned
in the 1945 Constitution, let alone either implicitly or explicitly. Fifth organ in question is
(i) Ambassador (ii) Council, (iii) Army, (iv) Navy and (v) the Air Force. In the meantime,
as described above, there are several other agencies including categories such as those
referred to in Article 24 paragraph (3) of the 1945 Constitution. Other bodies referred to
can be termed as a state institution that also has constititonal constitutional importance or
which are considered important but not mentioned explicitly in the 1945 Constitution.
As a follow-up of constitutional reform, after the enactment of the 1945 Constitution, the
Fourth Amendment constitutional structure of the Republic of Indonesia must be adapted
to the design of the Constitution that has changed that. All institutions in the lining of the
state and supra-governmental structures to be reorganized. Similarly, public institutions
in the public sector (public infrastructure), such as political parties, civil society
organizations and non-governmental organizations such as a foundation (Stichting) and
associations (vereenigings), also need to be reorganized. In fact, organizations in the
business sector or the market economy (market), such as a corporation, cooperative, and
state / local enterprises also require realignment.
In the state sector and the government, an effort that includes the institutional
arrangements in the realm of legislative, executive, judicial, and even in areas with mixed
or so-called independent agencies. Now, many institutions have sprung up independently,
for example, the National Election Commission, National Commission on Human Rights,
State Organizer Wealth Audit Commission, the Business Competition Supervisory
Commission, Ombudsman Commission, the Broadcasting Commission of Indonesia, and
so forth. All of these bodies need to be consolidated so it does not develop without a clear
In government, also needs to be re-organized the distinction between the political
functions of administrative and technical, between organizational departments and non
departmental government, and. Article 17 paragraph (4) of the 1945 Constitution, for
example, determines that the establishment, alteration, and dissolution of the state
ministry organizations should be regulated in the Act. That is, the Act also required that
in it is set on various aspects relating to the state ministries, so that the President does not
arbitrarily establish, modify, and disband the organization department. Institutional
arrangement is not even related to the reform should be done as a result of an extensive
regional autonomy held by Law no. 32 of 2004 on Local Government still needs to be
sustained thought to be adjusted with the provisions of Article 18, Article 18A, Article
18B of the 1945 Constitution. Whole and of each institution, both in the structural layer
of supra-state and government as well as in the infra structure of society, are expected to
perform (i) reorganization, reorientation and retraining of human resources (personnel
administration), (ii) streamlining and efficiency of the office structure , (iii) structuring of
information systems and information technology-based public services, (iv) improvement
of the infrastructure system of supervision and enforcement of the formation of a system
of reward and punishment.
C. LAW ENFORCEMENT
Law Enforcement (law enforcement) in a broad sense includes activities to implement
and apply the law as well as taking legal action against any violation of law or
irregularities committed by the subject of law, either through a judicial procedure or
through the procedures of arbitration and other dispute resolution mechanisms
(alternative desputes or conflicts resolution). In fact, in a wider sense, including law
enforcement activities are all activities that are intended to be legal Siwak as a device that
regulates normative and binding on the subjects of law in all aspects of community life
and the state really and truly adhered to run properly. In a narrow sense, it concerns the
activities of law enforcement action against any violation or deviation from the
regulations, in particular, are more narrowly, through a court proceeding involving the
role of the police, prosecutor, advocate or attorney, and justice agencies.
Therefore, in the strict sense, the main actors are very prominent role in law enforcement
are police officers, prosecutors, lawyers and judges. The enforcement of this law can be
seen first as a person or a human element to the quality, qualifications, and culture of
each work. In that sense the problem of law enforcement depends on the actors, players,
officials or law enforcement officers themselves. Second, law enforcement can also be
seen as an institution, agency or organization with the quality of its own bureaucracy. In
that regard we see from the eyes of law enforcement institutions in fact, has not been
institutionalized in a rational and impersonal (institutionalized). However, both
perspectives need to be comprehensively understood by looking at its links are to each
other as well as its association with various factors and elements associated with the law
itself as a rational system.
The legal profession needs to be reorganized and improved the quality and welfare. Legal
professionals, among others, include (i) legislators (politicians), (ii) the designer of law
(legal drafter), (iii) legal counsel, (iv) advocate, (v) a notary public, (vi) the
manufacturer's official land deed, ( vii) police, (viii) the prosecutor, (ix) clerks, (x) the
judge, and (xi) the arbitrator or umpire. To improve the quality of professionalism of each
profession, it needs a national system of certification and standardization, including with
regard to their welfare system. In addition, it also needed an integrated education and
training programs to continuously develop mental attitudes, improve knowledge and
professional skills that law enforcement agencies.
Professional quality development agenda among the legal profession need to be separated
from administrative staff development programs in environmental law institutions, such
as in court or in the people's representative institutions. Thus, the orientation of
improving the quality of law enforcement agencies can really be focused and sustainable
development. In addition, enhancement of quality of law enforcement professionals can
also be done through increased empowerment of the respective professional
organizations, such as the Judge Institute of Indonesia, Indonesian Notaries Association,
and so forth. Thus, quality can be enhanced through the role of judges of the Supreme
Court on the one hand and through the role of the Judge Institute of Indonesia on the
In addition, law enforcement agenda also requires leadership at all levels who meet two
conditions. First, leadership is expected to be an effective activator for the actions of law
enforcement is certain; Second, leadership is expected to be a role model for the
environment led each of the personal integrity of people who obey the rules.
One important aspect in the context of law enforcement is the process of acculturation,
socialization, and education law (law socialization and education law). Without the
support of the awareness, knowledge and understanding of the subjects of law in society,
a nonsense rule of law can be expected up and adhered to. Therefore, civilizing agenda,
correctional and law education should be developed within the framework of realizing the
idea of a separate state of law in the future. Several factors are associated with this
question is (a) the development and management of information systems and legal
infrastructure based information technology (information technology), (b) an increase in
effort Publications, Communication and Socialization of Law; (c) development of legal
education and training; and (d) correctional image and ideals-ideals in the legal field.
In the framework of legal communication, needs to be rethought the needs of digital and
electronic media, whether radio, television and internet networks and other media are
owned and managed exclusively by the government. About television and radio can be
said that private radio and television have been very much and therefore, the possibility
of unilateral domination of government information flows such as occurred during the
New Order is no longer possible to happen. Therefore, the source of the information from
the public and investors are already available are many and varied. However, the flow of
information from government to the community, particularly with regard to education
and penal laws was considerably less. To that end, the construction of the special media
has been very necessary. Such policies need to be considered include the possibility of
strengthening the position of TVRI and RRI as a medium of education law as it was
D. POSITIVE CODE SYSTEM INFRASTRUCTURE
To support the functioning of the legal system needed an ethical system that enforced a
code of ethics in a positive way in the public sector. In every sector of state and
government have always been disciplinary rules and guidelines for the organization and
working procedures that are internal. Organizations within the community has always
contained the Budget or Basic Guidelines and Guidelines for Household Budget or
organization. Nevertheless, only few of the organization or the institutions that already
have the Code of Ethics which is accompanied by the institutional infrastructure of the
Honorary Board or the Ethics Committee in charge of enforcing the code of ethics meant.
In addition, even if the guidelines or statutes and existing household, the documents that
exist only on paper in the sense of not really be used as guidelines for organizational
behavior. In general, regulatory documents, guidelines or statutes of the household and
only be opened and read at the time of the congress, conferences or meetings of national
organizations concerned. Moreover, these documents are just plain forgotten.
In other words, the organizational culture or organizational culture in all walks of our
society, the habit of obeying the rules, the rule of the game has not been a strong
tradition. Tradition still have to obey the rules that are widely cultivated. This requires the
institutionalization of the normative tradition of terraced, both with regard to legal norms,
ethics and moral norms and legal norms. Therefore, in addition to re-organize and
improve the system of legal norms, we also need to institutionalize ethics infrastructure
systems and positive in our society. Ethical systems and infra structure is
institutionalized, either through a mechanism within the supra-state structure and
governance as well as in the infra structure of society.
Asshiddiqie, Jimly. The idea of Sovereignty of the People in the Constitution and its
implementation in Indonesia. New York: New Ichtiar-van Hoeve, 1994.
_______________. "1945 Constitution: the Constitution of the State Welfare and Reality
in the Future". Inauguration Speech Professor at the Faculty of Law University of
Indonesia, Jakarta, 1998.
______________. Constitutions and Constitutionalism Indonesia. Revised edition.
Jakarta: Constitutional Press, 2005.
______________. Constitutional Law and the Pillars of Democracy. Jakarta:
Constitutional Press, 2005.
______________. Authority of the State Inter-Agency disputes. Jakarta: Constitutional
Kelsen, Hans. General Theory of Law and State. translated by: Anders Wedberg. New
York: Russell & Russell, 1961.
Montesquieu. The Spirit of the laws. Translated by Thomas Nugent. London: G. Bell &
Sons, Ltd., 1914.
Phillips, O. Hood and Paul Jackson. Constitutional And Administrative Law. Eighth
Edition. London: Sweet & Maxwell, 2001.