Indonesian Legal System

 By  Akhmad Zamroni

Source: http://klikkabar.com

What is a system? What are the so-called legal systems and judicial systems? How is the relationship between the legal system and the judicial system? What is the legal system and judicial system in effect in Indonesia?

As a rule of law, Indonesia creates and implements a legal system in all regions of the country. The legal system constitutes the whole elements of national law which are interrelated and mutually supportive, which are designed to create order, security and justice. The national legal system is also directed at realizing a prosperous, dignified and civilized life in society, nation and state.

A.  Definition of the Legal System

A system is a set of elements that are regularly interrelated to form a unity or totality. The system can also be interpreted as an orderly arrangement of views, theories, principles, rules, and so on (Kamus Besar Bahasa Indonesia, 2002: 1076). The main factors of the system are “bonding” and “mutual influence”. The elements of mutual influence mean that in the system there are elements that run continuously and flexibly (Zamroni and Lukmono, 2011: 260).

The system is a totality whose parts are interconnected. Goal-oriented systems; a system interacts with a larger system, namely its environment; the working of the parts of a system creates something of value; and each part must be in accordance with one another and there is a unifying force that binds it (Rahardjo in Effendi, 2013: 2). The system can also be interpreted as an integrated whole complex, which is characterized by interacting elements that are directed at achieving certain goals (Nisjar and Winardi in Effendi, 2013: 2).

Thus, the legal system can be defined as a set of rules or regulations and their supporting components which are arranged or formed regularly in a unit that is interconnected and influences each other. The legal system does not only consist of a collection of rules or regulations, but also other complementary components that make the set of rules work properly. The set of rules and complementary components each have a position and a role, but as a series they form a totality that is able to provide a compact and collective function.

The legal system can be said to be a complex entity. Its complexity can be seen not only from its function as a regulator of individual behavior, but also as a regulator of life in society, nation and state. All countries and nations have legal systems with different forms and characteristics. In a country that claims to be a rule of law, national law - as a norm - is placed as the highest system, which overcomes all rules, traditions, and various regulations of organizations and groups. As the elaboration of the constitution and the basis of the state, national law becomes a reference in the life of the community, nation and state. As a regulator of individual and community behavior in the life of society, nation and state, the legal system has high complexity and dynamics.

B.  Legal System in Indonesia

In principle, the legal system is a formal structure. In the Indonesian context, the legal system in question is a positive legal system, namely the legal system (currently) in effect in Indonesia. The Indonesian legal system is based on Pancasila and the 1945 Constitution. As the basis of the state, Pancasila is the source of norms, values ​​and rules for all laws and regulations in Indonesia. Apart from referring to Pancasila values, all laws and regulations must also be based on the 1945 Constitution (UUD 1945) as the state constitution. Legislation is a further and more detailed description of the 1945 Constitution.

Our national legal system functions to enforce law and justice through various mechanisms. In general, these mechanisms include, among other things, regulating the order of laws and regulations, regulating the structure (structure) of legal institutions, regulating legal material, and cultivating a law-abiding culture.

1.  Order of the Prevailing Laws

Our country applies various laws and regulations to regulate the life of society, nation and state. These regulations contain provisions on various issues, such as defense and security, human rights, taxation, education, employment, land, agriculture, business competition, press and broadcasting. The prevailing laws and regulations have different positions because the institutions that made them and the scope of their application also differ.

Thus, the prevailing laws and regulations have different levels. In other words, statutory regulations are arranged in sequence.

orderly order from highest to lowest. Therefore, in our national statutory regulation system, there is a term known as an order of legislation. The order of the statutory regulations is a level or leveling of the types of laws and regulations based on the principle that lower regulations must not conflict with higher regulations. This applies in order from lowest to highest. To regulate and determine the order of laws and regulations in Indonesia, a separate law is made, namely Law no. 12 of 2011 concerning the Formation of Legislative Regulations. According to this law, the types and order of laws and regulations in Indonesia are as follows.

1. The 1945 Constitution of the Republic of Indonesia (UUD Negara RI 1945),

2. the decisions of the People's Consultative Assembly (MPR Tap),

3. laws (UU) / government regulations in lieu of laws (perppu),

4. government regulations (PP),

5. presidential regulations (perpres),

6. provincial regulations (perda), and

7. District / city regional regulations (perda).

Based on the above sequence, the 1945 Constitution of the Republic of Indonesia (UUD Negara RI 1945) has the highest position. Meanwhile, district / city regional regulations (perda) have the lowest position. Meanwhile, the making of all these laws and regulations - including the making or amending of the constitution - must be based on Pancasila. As stated in Article 2 of Law no. 12 of 2011, Pancasila is the source of all sources of state law ..

a.  The 1945 Constitution of the Republic of Indonesia (UUD 1945)

The 1945 Constitution is the basic law or the state constitution which is the source of all statutory regulations in Indonesia. MPR decrees, laws (UU), government regulations in lieu of laws (perpu), government regulations (PP), presidential regulations (perpres), and regional regulations (perda) must be made based on the provisions of the 1945 Constitution. in all these laws and regulations, it must not conflict with the provisions contained in the 1945 Constitution.

The 1945 Constitution was formulated by the BPUPKI (the Indonesian Independence Preparatory Efforts Investigation Agency). The design and formulation were later revised and determined by the PPKI (Preparatory Committee for Indonesian Independence) as the state constitution. If deemed necessary, the 1945 Constitution can be amended. The institution that has the authority to amend and determine the outcome is the MPR (People's Consultative Assembly).

b.  Decree of the People's Consultative Assembly (MPR Tap)

In the order of the statutory regulations, the decisions of the People's Consultative Assembly (MPR Tap) can be said to have sunk in and out. Before Law no. 12/2011 applies, the order of the laws and regulations is regulated by Law no. 10 of 2004. According to Law no. 10/2004, in the order of laws in Indonesia there is no MPR Decree, whereas previously the MPR Decree was a high-ranking and strong regulation. After being abolished / deleted (based on Law No. 10/2004), the MPR Decree was re-emerged through Law no. 12/2011. MPR Decrees are regulations made by the MPR. This regulation is made to describe the provisions contained in the 1945 Constitution.

c.  Law (UU) / Government Regulation in Lieu of Law (Perpu)

Laws are regulations made by the DPR through a joint agreement with the president. The law is made as an elaboration of the 1945 Constitution or MPR Decree. Laws are made to follow up various provisions or to elaborate matters that have not been regulated in the 1945 Constitution or MPR Decree. Meanwhile, government regulations in lieu of laws (perpu) are regulations made and stipulated by the president in his position as head of state without the approval of the DPR. Government regulations in lieu of laws have an equal position with laws. The contents are also the same, namely following up on provisions or describing matters that have not been regulated in the 1945 Constitution.

Government regulations in lieu of laws are made, stipulated, and enforced in an emergency or critical situation that is urgent or compelling. Even if a president is made without the approval of the DPR, at a later time the government regulation in lieu of law must be approved by the DPR in the next trial. If the following trial does not get the approval of the DPR, a government regulation in lieu of law must be revoked and declared invalid.

d.  Government Regulation (PP)

Government regulations (PP) are regulations made and stipulated by the president in his position as head of government. Government regulations are made and stipulated to follow up or elaborate the provisions contained in law. In the technical language of legislation, it is stated that government regulations are made to implement laws.

e.  Presidential Regulation (Perpres)

Like government regulations, presidential regulations (perpres) are regulations made and stipulated by the president. However, in the order of statutory regulations, presidential regulations have a position under government regulations. Presidential regulations are made to elaborate the provisions contained in law or it can also be used to implement provisions contained in government regulations.

f.  Regional Regulation (Perda)

Regional regulations are regulations made by the DPRD (Regional People's Representative Council) with the approval of the regional head. Regional regulations are made and enforced to follow up on the implementation of regional autonomy or accommodate special conditions in the regions. Regional regulations can also be made to describe the contents of laws and regulations that are above it, such as laws, government regulations, and presidential regulations.

The formation of local regulations depends on the regional level. If made at the provincial level, regional regulations are made by the provincial DPRD in agreement with the governor. If drafted at the district level, regional regulations are made by the Kapubaten DPRD by agreement with the district head. If made at the city level, regional regulations are made by the municipal DPRD in agreement with the mayor.

2. Legal Institutional Structure

The legal institutional structure or structure is an important part of our national legal system. The structure of the legal institution in our country has changed from time to time in line with developments in various fields of life, especially in the field of law and politics. Changes in legal institutions in our country cannot be separated from the dynamics of people's lives.

The structure of the legal institution also determines the formation and administration of law. Judicial institutions, law enforcement officials, legal administration procedures, and legal administration supervision systems are part of the legal institutional structure whose existence and implementation determine the stability of the national legal system as a whole. These aspects are interrelated and mutually supportive in the legal system.

Efforts to strengthen the structure of legal institutions in Indonesia will continue to be carried out as part of reform and development in the legal sector. More specifically, these efforts were made, among others, to tidy up coordination between legal institutions and to avoid overlapping authority in handling legal problems that could result in legal uncertainty.

3.  Legal Materials

Legal material is related to the content or substance of the rule of law. Legal material is legal principles that are poured into a series of regulations, both in written and unwritten form. Any legal material that is translated into regulations stipulated by the state (through an authorized institution), is binding. All citizens must submit and obey it; in a sense, carry out the commands in it and leave its prohibitions.

Legal material greatly determines the establishment and stability of our national legal system. Its existence is a direct regulator of the attitudes and behavior of all elements of the nation and state. Through a firm, consistent, consistent and non-discriminatory implementation by the apparatus, legal material plays a very important role in creating order, security and justice.

Regarding legal material, since entering the reform era in 1998, our country has been very active in reforming the legal materials contained in various laws and regulations. Laws and regulations whose material contradicts the spirit of reform and efforts to uphold justice are revoked or renewed. On the other hand, new legislation with material that is reformative, non-discriminatory, non-repressive, and encourages the growth of freedom (that is responsible), equality, the spirit of healthy competition, community empowerment, and the creation of justice continues to be made and enforced.

4.  Legal Culture

Legal culture is related to legal awareness, attitude and behavior. These three things (awareness, attitudes, and legal behavior) reflect (whether or not embedded) legal culture. A society or nation is said to have a (good) legal culture if it has a strong habit of always being aware of the importance of the law and having a consistent attitude and behavior to obey the law.

Regarding the legal culture, it remains a crucial issue in our society and nation. In the midst of economic and social situations and conditions that have not fully recovered from the crisis, in general our society has yet to have a good legal culture. This happens not only among the lower classes of society, but also among officials, politicians, and even law enforcement officials themselves.

This is indicated by the fact that there are still many crimes in various forms with various actors, from the grassroots to high-ranking officials and law enforcement agencies. As for the many violations of the law, the resolution does not prioritize the principles of material truth and a sense of justice. The law enforcement is still very often done in a discriminatory way (in perspective). Many cases of lawlessness, such as corruption and abuse of office, with high-level perpetrators, take place without proper resolution, while minor law violations - for example, stealing a few pieces of chocolate and watermelon - are the perpetrators of the lower class, are processed according to the rules. and the perpetrators were actually punished.

This clearly contradicts the principle of justice, the principle that all people have the same position before the law, and the principle of getting equal treatment before the law (right of legal equality). More than that, these cases will seriously hinder efforts to enforce law and instill and strengthen legal culture in the life of society, nation and state. Obstruction of law enforcement efforts and cultivation of a legal culture will in turn make it very difficult to strengthen the overall legal system in our country.

The strengthening of the legal system will run less optimally without the support of law-abiding awareness, attitude and behavior. We hope that the problem of strengthening the legal culture is still a big job and a challenge for our nation. It really takes a very strong determination and willingness to have legal awareness and to behave and behave in compliance with the law through concrete practices in the daily life of society, nation and state.