Makalah Internasional at KESADARAN IDEOL

EMANCIPATION AND CONTINGENCIES1:
Measuring Constitutional Court (MK) Rechtpositie as Sentra Collective Legal Awareness
Post-Ratification of Act. No. 8 of 2011
Arif Hidayat2 and Ayub Torry Satriyo Kusumo3
Abstract

This article will discuss about Constitutional Court's role as a center for cultureideology of Pancasila as the embodiment of strengthening the national integration of Indonesia.
Pancasila is the ideology of a nation that is a source of constitutional values. Strengthening the
ideological consciousness of the nation will be reviewed from the dimensions of reality,
idealism, and the dimensions of flexibility. Constitutional Court as the guardian of the
constitution are automatically also means as the guardian of Pancasila as the material
constitution and defend it as an open ideology. Berkonstitusi conscious culture is created not
only know the basic norms in the constitution. More than that, it also takes real experience to
see and apply the constitution in the practice of the life of society, nation and state. Therefore,
the growing culture of conscious berkonstitusi is a long and continuous process.
Keywords: Constitutional Court, Constitutional Literacy, Ideological Consciousness
A. INTRODUCTION
Political freedom that often people refer to as democracy which we derive the imposition
of post-Suharto often considered to be the end of the radical political agenda. Democracy in
its current, always interacting with our social problems. This situation gave birth to two
trends: (i) limitations in the theories that explain the importance of extending freedom and

emancipation and (ii) the widespread skepticism about radical politics. This paper intends to
provide theoretical reasoning about the natural conditions that actually puts liberal theory and
the thought of emancipation became so important and its correlation with rechtspositie Court
as guardian of the constitution (the guardian of constitution) who lived in the joints of
national and state.
1

Contingency is a rough translation of the word contingency that could literally be interpreted as events,
expectations must be achieved in the future but probably not predicted in the present moment. Deliberately taken in
such form, given the difficulty to find a counterpart in the Indonesian vocabulary. Own conception of contingency
here refers to the conception of Rorty about the state of flow 'without a specific ontological attitude', that there is
only change and tradition as the traces of such changes. Contingency in one or another way to imply a kind of
relativism against all standard forms of existence in a world at once present a certain pragmatism in attitude
teruatama face constant stream of changes and unexpected. To understand this situation, Rorty uses Sartre's
vocabulary of 'meta-stable' ie a state that does not allow to take an attitude of 'definitely' be rigid as a result of the
awareness that the way to describe and present attitude is always under the possibility of change, the realization that
attitude is very vulnerable to change. See the Rorty, Contingency, Irony and solidarity. Cambridge. Cambridge
Univesity Press. 1989. Second Edition. 74.
2
The Chairman of Constitutional Law and Administrative Law of the Semarang State University

(UNNES), an active member Association of Teachers of Law on the Constitutional Court (APHAMK).
3
Lecturer of International Law at Faculty of Law UNS Surakarta.

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By the time we find a rule or law that contains provisions that govern how
government is run, it means we have found part of the constitution. The Constitution is a set
of rules or basic laws contain provisions about how the government managed and run. Hence
the rule or law contained in the constitution that set up things very basic of a country, as well
as the constitution is said to hold on to the basic law in the administration of a State. Because
of his position is very important that the constitution should be understood of all citizens.
Paradigm of thinking in the formulation of articles of the Constitution 1945, such as state
organizations, human rights, people's ideals, and principles of state ideology is very relevant
to strengthen the institutionalization of the collective consciousness of law (constitutional) in
Indonesia
B. DISCUSSION
1. Constitutionalism: Between Emancipation and Contingencies
In the teaching of law, constitutionalism, commonly called the principle of limited
government is the main basis of general agreement or consent (consensus) among the

majority of buildings are idealized with respect to the state. If a consensus or general
agreement that collapsed the collapse also the legitimacy of state power is concerned.
Benchmark upholding constitutionalism rests on three elements of the agreement;
agreement on a common goal; agreement on the rule of law as the basis of government;
and agreement on the form of institutions and administrative procedures relating to
building state organs and procedures regulate power, relations between the state organs to
one another, and the relations between organs of the country with citizens.4
The Constitution is a concretization of the functional point of constitutionalism
that has a symbolic function, namely as a unifying force (symbol of unity), the reference
to national identity (identity of the nation) and as a state ceremonial center (center of
ceremony); society handler functions (tools of political, social, and economic control);
and engineering functions and the renewal of society (a tool of political, social, and
economic engineering and reform). Meanwhile, in particular, the constitution is
considered as a manifestation of the supreme law that serves to define and set restrictions
on the state organs of power and power relations between the state organs, organs of state
4

Brian Thompson, Textbook on Constitutional and Administrative Law, Blackstone Press ltd. London..
Third edition. 3-4.

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power relations between the citizens in securing human rights as well as giving
legitimacy to the rule government on the one hand and citizens on the other hand, as well
as instruments for the transfer of authority from the ruler origin (the people in a
democratic system) to the organs of state power.5
As the highest form of social agreement, the constitution contains the ideals to be
achieved with the establishment of the state and the basic principles of achieving those
goals. Constitution 1945 as the constitution of Indonesia is a legal document and
documents containing political ideals, principles, and the principles of national life.
Additional Rules Article II of the Constitution 1945 states that the Constitution of the
Republic of Indonesia Constitution 1945 consists of the Preamble and the Articles as a
whole constitutional norms are supreme in the national legal order (the national legal
order). To achieve the ideals of state formation we are familiar with the term national
goals set forth in the Preamble of the Constitution 1945 fourth paragraph and carry out
state administration based on Pancasila, the Constitution 1945 has provided a framework
of national and state structure. Norms in the Constitution 1945 not only organize the
political life but also economic and social life. This is because our founding fathers
wanted the people of Indonesia fully sovereign, not just political sovereignty. Thus the
Constitution 1945 of political, economic constitution, and the social constitution which

should be the reference and grounding in political, economic, and social, both by the state
(state organ), society (civil society), or the market (bussines).
The forms of political change and liberalization of the world such as
democratization, political freedom and so it can 'alarming' in the sense that;
institutionalization as well as some expansion of freedom is for one day will probably
nullify a number of important emancipation agenda or to bargain his radical agenda. This
is a common symptom “euphoria of freedom”. However if we put a political output
drops anything as just part of history and tradition of the political future and a changing
world, the establishment of that kind would never have dragged us to the pessimism and
skepticism toward emancipation in a political radical. We're actually lucky, because at
the same time, the basis of our actions to fight for emancipation is no longer fixated on
doctrine or our monolithic view of oppression; we become a more and more reasons and
5

Jimly Asshiddiqie, Konstitusi dan Konstitusionalisme, Konstitusi Press. Jakarta, 2005. 33.

3

arguments to explain why it continues to relevant acts of emancipation. One reason is
perhaps the most important thing is that today we can affirm together that we are fighting

for emancipation, not because we are the savior god to others but because we ourselves
are the ones who have been increasingly liberated.
With this kind of standpoint and the emancipation of our beliefs about the good
things about the future, hope and change is no longer based on a kind of 'spirit of
prophecy' who learned through a revelation from the outside but rather grew out of
consciousness and tradition of our own creation. This is where the notion that 'to Make
Their own history ... under Certain circumstances' that just found the fullness of subtle
and fundamental. At this point our choice to struggle for the emancipation of his own and
then freed from the burdens doctrinal.
At this point, we come later to once again affirm our answer to the question
whether emancipation is still possible in an era of democracy? So the answer is: "if the
meaning of emancipation is more a manifestation of the need to form a continuous and
expanding the practice of freedom (practice model/institutions of freedom) through the
practice of liberation (practice model of liberation), which continually changes, then
obviously the answer is possible and always possible. But if the meaning of emancipation
is the effort made under a standard of values and norms are taken from our ideals about
the future, then we'll never really dealt with the liberation but rather utopian and wishful
thinking. If the meaning of emancipation is finding solidarity in the process of learning
and experience through liberation traditions that exist, it is clear emancipation is always
possible.

Also need to be fulfilled, that the practice of liberation in the context of Indonesia
today we are clearly explained his net two existing political tradition that after the
tradition of imperialism depravity passed, then the worst and most primitive stage of
political identity in Indonesia up to now is the political head of the bandits who practiced
and his soldiers by using the name New Order. Meanwhile in the opposite direction, the
maximum points that can be achieved in the tradition of this temporary exemption only to
explain the reality of identity politics and the rest scattered in fragments of an ideal
democracy, the radical-liberal, libertarian (neo-liberal), which intermingled with
cosmopolitanism of human rights.
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However, once again to be seen, that always depends on who we are what we
make in the perspective of “meta-stable”, we, ourselves and the whole vocabulary that
we created and we call vocabulary, always under change. At this point we must believe
that there was no day off to politics it's never gone to a revolution. Democracy now can
lull us within the limitations of fun, but also can bring in sources and springs are endless
for emancipation, everything depends on our own creations rather than theory, rather than
the doctrines of the eternal.
2. Rechtspositie Constitutional Court (MK) as Center of Collective Legal Awareness
The existence of the institution of the Constitutional Court is generally a new

phenomenon in the world of nations. Countries that have institutional MK in general are
the countries that experienced a change from authoritarian to democratic state.6
In Indonesia, the Constitutional Court is a product of changes in the Constitution
1945 fourth. Article 24 paragraph (2) of the Constitution 19457
stated: "The judicial power shall be done by a Supreme Court and judicial bodies
underneath it in the general courts, religious courts, military courts, state administrative
courts, and by a Constitutional Court". This means the judicial branch of power is an
integrated system made by the Supreme Court that reflects the peaks and the sovereignty
of Indonesia under the Constitution 1945 law in August 2003. Constitutional Court RI
(MK) then governed by Act 24 of 2003 regarding the Constitutional Court promulgated
on August 13, 2003.8 But the Court itself a new institution is completely formed on
August 17, 2003 after the oath of office nine-judge constitution on August 16, 2003.9
To understand Rechtspositie Court and the Court re-positioning efforts more
precisely in our constitution, it is necessary to re-look at the spirit of judicial reform,
especially the tempestuous world of the judiciary in 1998. At least there are three things
which arise: (i) the rampant judicial corruption involving law enforcement chess dynasty,
6

Jimly Asshiddiqie dan Mustafa Fakhry, Mahkamah Konstitusi: Kompilasi Ketentuan UUD, UU dan
Peraturan di 78 Negara, Pusat Studi Hukum Tata Negara FH UI dan Asosiasi Pengajar HTN dan HAN Indonesia.

Jakarta, 2002. 67-73.
7
The Fourth Amendment of the Constitution 1945.
8
State Gazette of the Republic of Indonesia, 2003 No. 98, Supplementary State Gazette of the Republic of
Indonesia No. 4316.
9
The nine judges of MKRI on the first constitution established pursuant to Presidential Decree No. 147/M,
2003, August 15, 2003.

5

(ii) the number of product legislation substantively opposed to the Constitution1945, and
(iii) the vulnerability of the judges of the authority of government intervention since the
laying of the judge under the government (for personnel administration and financial) and
is under the Indonesia's Supreme Court or MA (for technical judicial).10
The birth of the Constitutional Court as part of the institution of judicial power in
addition to the MA who specializes in administrative or judicial justice of the
Constitutional Court of Indonesia to put political authority to hear at the first and last of
which the decision shall be final and binding to: (a) test against the Act with Constitution

1945, (b) break authority dispute of state institutions whose authorities are granted by the
Constitution 1945, (c) decide upon the dissolution of political parties, and (d) decide
upon disputes on general election results (including the General Election since the release
of Law no. 12 of 2008; this is a consequence of the juridical authority of the provisions of
Law no. 26 of 2006 concerning the placing Election Election Election to the regime).
Addition MK (e) shall give a decision on the opinion of the House that the President and/
or Vice President is alleged to have violated the law in an act of treason, corruption,
bribery, other felonies, or moral turpitude, and/or no longer qualify as President and/or
Vice President as set forth in the Constitution 1945.11
It must be recognized that the productivity of the Constitutional Court as the
Guardian of The Constitution and The Final Interpreter of the Constitution has chalked a
lot of contribution to the soundness of our legal system and state administration.
Associated with the existence of the Constitutional Court, there are several decisions of
the Constitutional Court relating to judicial review of (prospective) who is ultra petita are
assessed to exceed the limits of authority and into the realm of the legislature (legislative
positive) and the decision violates the principle of nemo judex in causa husband (ban cut
it that concerns itself) as nihilnya supervision of the Judicial Commission of
Constitutional Court judges on the Constitutional Court Decision No. 005/PUU-IV/2006,
and that tends to set the verdict or decision which is based on a conflict between one Act
10

Moh. Mahfud MD, “Kekuasaan Kehakiman Pasca Amandemen UUD 1945”, Papers on public discussion
about the Constitutional Amendment discourse organized the National Law Commission (KHN) in Jakarta, dated
June 12, 2008
11
Pasal 24C ayat (2) UUD 1945, juncto Pasal 10 ayat (2) dan (3) Undang-Undang Nomor 24 Tahun 2003
tentang Mahkamah Konstitusi. Article 24C Paragraph (2) of the Constitution 1945, in conjunction with Article 10
paragraph (2) and (3) of Act. No. 24 of 2003 regarding the Constitutional Court (MK).

6

to another Act (harmonization and synchronization), whereas judicial review to test
material that can be done vertically Court is the constitutionality of the Act is against the
Constitution, not problem of collision between one Act with other laws.
Related to the above problems, then he went on to Act No. 8 of 2011 regarding
Amendment to Act No. 24 of 2003 on the Constitutional Court. The new law is intended
to patch up the old Court Law weakness. Several important changes in the subject Act 24
of 2003 regarding the Constitutional Court, among others, the composition of the
Constitutional Court of Honor Council; supervision of constitutional justice; term of
office of Chairman and Vice Chairman of the Constitutional Court, provided education to
be appointed as a judge constitution, as well as the Code of Ethics and/or Code of
Conduct Constitutional Court Judge.
Monitoring of the Constitutional Court judges is done by placing the Court of
Honor Council as the device is formed by the Constitutional Court to monitor, review and
recommend action to the Constitutional Court, which allegedly violated the Code of
Ethics and Code of Conduct Constitutional Court (Article 27A and Article 27B).
Law Article 45A. Act 8 of 2011 confirms ban on ultra petita with the clause "The
decision of the Constitutional Court must not contain the ruling is not requested by the
applicant or the applicant exceeds the request, except on certain things relating to the
subject application". Article 59 paragraph (1): "Decision of the Constitutional Court
regarding the testing of the Constitution 1945 Act to be submitted to the House of
Representatives, the President, and MA". While Article 59 paragraph (2) states "If the
necessary changes to laws that have been tested, the House of Representatives or the
President to immediately follow up the decision of the Constitutional Court referred to in
paragraph (1) in accordance with laws and regulations".
Article 57 paragraph (1) "an injunction decision, the Constitutional Court ruling
stating that the material content of the paragraphs, chapters, and / or parts of laws in
conflict with the Constitution 1945 Constitution, the material content, articles, and / or
parts of this law has no binding legal force. While Article 57 paragraph (2) "Decisions of
the Constitutional Court ruling which states that the injunction does not comply with the
establishment of the Act based on the formation of the Constitution 1945 Act, the law has
no binding legal force". Article 57 Paragraph (2a) "Decisions of the Constitutional Court
7

does not include: (a) injunction than those referred to in paragraph (1) and paragraph (2),
(b) orders to the legislator, and (c) formulation of the norm instead of the norm of law
declared contrary to the Constitution 1945'.
At Law. 8 of 2011, Article 48a paragraph (1) states that the Court may issue a
determination in terms of: (a) the petition does not constitute the authority of the
Constitutional Court to adjudicate cases filed, or (b) the applicant withdraw the
application referred to in Article 35 paragraph (1a) . Next Article 48a paragraph (2)
Injunction referred to in paragraph (1) letter a says, "Declare the Court was not
authorized to adjudicate the applicant's request". Whereas Article 48a paragraph (3)
Injunction referred to in paragraph (1) letter b reads, "To declare the applicant's
application be withdrawn".
With these provisions in the Constitutional Court is expected to run the authority,
particularly in testing the Law of the Constitution must match the primary intent or
purpose of the real (original intent) and the contents of the Constitution Act that the test
basis. It needs to be recalled that the constitution is based on the resultant product of
social situations, politics, and economics at the time made.12
As Thomas Paine who said that the birth of the constitution was not an act but an
act of government to regulate people's government of his country and the government of
the country without a constitution is power without right.13 Can also be referred to the
opinion of Carl J. Friedrich who mentakan that constitution in modern political thought is
very distinctive, because it is a process in an efficient control of government activity.14
Thus, on the positions of the Constitutional Court should be affirmed as an eraser
or Invalidate norms (legislative negative), while the House of Representatives and the
President (the government) is the maker of the norm (positive legislative). Court order
not to exceed the limits, or enter another realm and become a political power then
according to Moh. Mahfud MD15 there are ten negative formulation (the ban), as
signposts for the Court to exercise its authority, namely:
12

KC. Wheare, Modern Constitution, Oxford University Press. London-New York-Toronto. 1975. 67.
Thomas Paine, Rights of Man (1792), Constitution Society http://www.constitution.org/tp/rightsma2.htm,
16/09/2011
14
Carl J. Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and
America, Blaisdell Publishing Company, Welldam, Mass. 5th edition. 1967. 3.
15
Presented by Moh. Mahfud MD in front of Commission III DPR-RI at the time of the fit and proper test
for the selection of the Constitutional Court, dated March 12, 2008.
13

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1. The Court must not make a decision that is set, the cancellation of the Act should not
be accompanied by setting norms and only the constitutionality or unconstitutionality
of that assertion with a statement has no binding legal force;
2. The Court must not make a decision which is ultra petita, although the contents of the
requested judicial review of laws directly related to other articles that can not be
separated, because mutatis mutandis the provisions in the Act does not apply because
there are other articles which were canceled by the Constitutional Court. In particular,
this has given the demands on the legislature to conduct a legislative review. Despite
being reasonable if associated with such things there is an opinion which states the
need for ultra-petition;
3. The Court must not make the decision should not be made law as a basis for
cancellation of any other Act, the Constitutional Court because the task is to test the
constitutionality of the Act against the Constitution. Overlap between the various
laws into the legislative obligation to resolve through legislative review;
4. The Court must not make the decision to interfere with matters delegated by the
Constitution to the legislature to set it up with or in the Act in accordance with its
own political choices;
5. The Court must not make decisions by basing on the theory that is not clearly
embraced by the constitution. Constitutional Court's decision also should not be based
on what is valid in other countries, as advanced as any country, but must be based on
the content of its constitution and all its original intent;
6. The Court must not make decisions that violate the principle of nemo judex in causa
husband decided that matters relating to self-interest;
7. The Constitutional Court judges may not speak or express opinions to the public on
the concrete case under review the Court, including at seminars or in official speeches
that are not held hostage by his own statement and masyarakatpun not polarized by
the allegations about the decision to be issued by the Court;
8. The judges of the Constitutional Court should not be looking for a case by suggesting
to anyone to file a lawsuit or appeal to the Constitutional Court, which took the
initiative to let it justiabalen itself;

9

9. The judges of the Constitutional Court should not be to proactively offer themselves
as mediators (mediator) in the cross of political disputes between state institutions or
between political institutions, because it's from an ethical point can be interpreted as
political attitudes are political, not legalistic;
10. Court institutionally or individually may not make an opinion on the existence or on
the merits of the Constitution, or whether the Constitution in force it needs to be
changed or maintained. The Court is only required to carry out or oversee the
existence of the Constitution, while the business is the business of maintaining or
changing other authorized institutions (It must be excluded if it is for academic
purposes, rather than political opinion).
The first authority of the Constitutional Court is often referred to as judicial
review. However, this term should be straightened out and replaced with the term
constitutional review or testing of the constitutional authority of the Constitutional Court
is considering that test against the 1945 Constitution Act. Perdefinisi, the concept of
constitutional review is the development of the modern idea of democratic governance
system that is based on the idea that the state law (rule of law), the principle of separation
of powers (separation of power), and protection of human rights (the protection of
fundamental rights). In the system of constitutional review that included two main tasks,
namely (a) ensure the functioning of the democratic system in relation to the role or
interplay between the branches of executive power, legislative, and judiciary, and (b)
protect individual citizens from abuse of power by state institutions of adverse their
fundamental rights guaranteed in the constitution.
Article 24C Paragraph (1) of the Constitution 1945 stipulates that the
Constitutional Court to test the Act against the Constitution, while according to Article
24A Paragraph (1) Supreme Court test of legislation under the Act against the legislation
is higher. Here we see there is a less synchronous cross authority between the Supreme
and Constitutional Court in dealing with conflicts between regulations and conflicts
between people/institutions. In the present arrangement, the Supreme Court dealing with
the conflict between the person/institution as well as conventional judicial handling
conflicts between rules (judicial testing), while the Constitutional Court to handle
conflicts between the constitutional court rules as well as dealing with conflicts between
10

people/organizations in specific things. Ideally, the Constitutional Court as a
constitutional court to handle the conflict between judicial regulations that require testing.
That is, testing the Law of the Constitution and testing legislation to the legislation of a
higher rank everything into the realm of the Court authority. This meant that there was a
concentration and consistency of interpretation of all legislation from the highest (the
Constitution) to the lowest (Local Rule or Regulation/Perda). If the authority of the
Constitutional Court considered this idea too much, then the bias only other authority
who has been the authority can be transferred to the Supreme Court, for example,
authority to decide the dissolution of political parties and or the authority to decide the
election results.
If it implemented of the amendments of Constitution 1945 to the to-so time, then
it is very important to include the constitutional complaint and the constitutional question
in the design of the Court authority. Constitutional Complaint is filing the case to the
Court for violations of constitutional rights that there is no legal instrument upon which
to bring an action against it or is no longer available upon completion of the path of law
(justice). Constitutional Complaint can also be done on the laws and regulations under the
Act that directly violates the content of the constitution, but does not clearly violate the
laws and regulations are higher under the Constitution, and court decisions that violate
constitutional rights after they were legally enforceable and can not be countered again
by the efforts of law to a higher court, such a decision was or herziening (review) of the
Supreme Court which was detrimental to a person's constitutional rights. While the
Constitutional Questions are questions of constitutional judges handling a particular case
to the Constitutional Court regarding the constitutionality of the Act relied upon cases
handled before deciding the case, when its constitutionality is doubtful and questionable.
The authority of the Court in examining the Law of the Constitution is one of real
importance for the implementation of the constitutional culture of the constitution itself
as a living constitution. Testing was conducted to determine whether a provision in a
statute, or not opposed to the Constitution 1945 Constitution. But the Court in this case
can not become active. The Court can only exercise authority if there is a petition for
judicial review filed by public law. In filing this petition is necessary to realize
constitutional form of cultural awareness of his constitutional rights as citizens both as
11

individuals and groups that constitutional rights have been violated by a provision of law.
On the other hand, is also needed to gain an awareness of the protection of constitutional
rights violated by applying the constitutional test of the adverse provisions of the Act. If
there is no constitutional conscious culture, society will not know whether their rights
violated or not and do not make efforts to obtain constitutional protection. As a result, the
Constitution 1945 would be violated by many of the provisions of law so that ultimately
the constitution will only be a document on paper without implemented in practice.
In the implementation of the Court authority, a fundamental new problems always
arise in the process of structuring the basic state of life associated with the Pancasila state
and the development of a world dominated by the ideology of capitalism. Those issues
include: (a) the economic relationship with the law and politics, (b) the institutional
framework of the state; (c) the purpose and role of government, (d) the effects and limits
of state intervention in society, and (e) problems facing the country's sovereignty with the
development of international law.16
Decisions about testing the constitutionality of the Act against the Constitution
1945 have been made by the Constitutional Court to petition for a proposed range is also
always in full view of the Constitution 1945. In these decisions contain terms and
concepts associated with understanding of a provision in the constitution based on the
state's objective (staatside) and Indonesian nation philosophical foundation (filosofische
grondslag). Until now there have been various decisions of the Constitutional Court in
political17, economic18, social and related provisions of the Constitution 194519 which
elaborates the basic values of Pancasila as the touchstone for testing the application
against the Constitution Act.

16

Bob Jessop, State Theory, Polity Press. Cambridge. 1990. 48.
Example Constitutional Court Case Number 011-017/PUU-I/2003 that restores political rights of passive
and active former PKI members and other banned organizations by stating that Article 60 Sub-Article g of Law
Number 12 of 2003 concerning General Elections for the DPR, DPD, and the parliament (State Gazette Year 2003
Number 37, Additional State Gazette No. 4277) against the 1945 Constitution and has no binding legal force.
18
Example Constitutional Court Decision Case No. 002/PUU-I/2003 in case of petition for the
constitutionality of Law No.. 22 of 2001 on Oil and Gas, and Decision No. MK. Case Law stating
001-021-022/PUU-I/2003. 20 of 2002 as a whole has no binding legal force because the Articles were tested and
found to conflict with the 1945 Constitution, namely Article 16, Article 17 paragraph (3), and Article 68 is the heart
of the Law no. 20 of 2002.
19
Eg Decision No. Case 011/PUU-III/2005 in case the petition for judicial Act. No. 20 of 2003 on National
Education System.
17

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While the authority of the Constitutional Court, can be viewed as an effort of
institutional relations structuring the state and democratic institutions based on the
principle of supremacy of law. Prior to the formation of the Constitutional Court with
such authority, state and institutional relations more democratic institutions based on
relations of a political nature. Consequently, an institution can dominate or co-opt any
other institution, or a disagreement between the agency or institution that gave birth to a
constitutional crisis. This raises the lack of legal certainty and kotraproduktif towards the
development of cultural democracy. Setting the state political life in general has also
evolved as a form of "the constitutionalization of democratic politics".20 It is merely to
realize the rule of law, legal certainty, and the development of democracy itself, based on
the concept of a democratic constitutional state (democratische reshtsstaat).
Court as the guardian of the constitution is automatically also means that as
guardians of Pancasila as the material constitution and defend it as an open ideology. The
Court elaborated on the values and basic principles of Pancasila to determine whether
something is contrary to the constitutional provisions of the Act or not. In addition,
through the exercise of its authority, the Court kept open the Pancasila as an ideology
always consider the development of values in society and the international community so
it does not become a closed ideology that can be misused as a tool of legitimacy of power
alone. It can also be done in the execution of other powers, especially in terms of
authority dispute of state institutions, the dissolution of political parties, and decide upon
proposed parliament to impeach the President and or Vice President.
It is also very important to note in the context of these changes is that now,
officially named the constitution which the Constitution of the Republic of Indonesia of
1945, or abbreviated as the Constitution 1945, providing a mechanism for basic legal
norms contained therein can be run supervised its implementation by the agency called
judicial Court. People's Consultative Assembly in Indonesia (MPR) is an institution that
establishes and/or change the Constitution, but after the Court determined was assigned
to escort him. Even if in the formulation of the provisions of the Constitution if there is a
deficiency or lack of clarity (obscure), the Constitutional Court was given authority to
determine the proper interpretation of it. Therefore, the Court in various countries
20

Richard H. Pildes, “The Constitutionalization of Democratic Politics”, Harvard Law Review, Vol. 118
No. 1. 2-3. (2004)

13

commonly referred to as the guardian and interpreter of the constitution or "the guardian
and the sole and the highest interpreter of the constitution".
Only, it must be understood that the implementation of the escort and
interpretation of the Constitution by the Constitutional Court was done not by way of its
own, but through the media decisions on matters that diadilinya. These rulings in matters
relating to the four types of authority and the obligation of the Court is basically a
concrete manifestation of the functions carried out escort and interpretation by the
Constitutional Court against the fundamental law of the Constitution of the Republic of
Indonesia of 1945.
Therefore an important and strategic position of the Constitutional Court as a new
state institution in our constitutional system after the change, it is necessary for the court
bersengaja effort to civilize the constitutionality in the midst of society. In the Law no. 24
Year 2003 regarding the Constitutional Court determined that many interested parties of
the existence of this institution. The parties are clearly stated in Law no. 24 of 2003, has
the right to appeal the case to the Constitutional Court are: (i) Individual citizen of
Indonesia, Unity of indigenous people or legal entities of public / private (for testing of
the Act), (ii) State (for the testing of laws and constitutional disputes among state
institutions), (iii) Government (for the dissolution of political parties), and (iv) The
participants in the general election, both members of the House of Representatives
elections (DPR), Council Representative to the Regional (DPD), and Regional
Representatives Council (DPRD), and the election of President and Vice President (for
the dispute the election results).
Thus the very broad target groups that need to be introduced with all the ins and
outs of the Constitutional Court to help make the rights and/or authorities of each side of
the above can be secured and realized in the implementation of the state of everyday life.
Certainly not all Indonesian citizens, not all of the customary law community unit, not all
legal entities, state agencies, government officials, participants or general election to
apply for a case. To become an applicant is officially no matter the conditions set out in
statute, so that the various ins and outs of the procedure in the Court proceedings are
absolutely necessary are introduced to a wide audience. With the introduction of the
expected audience in general and the parties mentioned above in particular, can truly
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realize and understand well the importance of the Constitutional Court within the
framework of the guarantees of the rights and obligations in the life of their own
constitutional state based on the Constitution 1945 .
Introducing and awaken the people's rights and constitutional obligations as
citizens, certainly not easy. Resuscitation efforts or 'conscientisation' takes a long time
and require extensive involvement of actors and many others. Therefore, each agency
official and unofficial institutions, political figures and community leaders are expected
to be worked together to jointly and individually take on the role and responsibilities of
nationhood in order to build and enhance awareness of the Constitution 1945 as a state
based on widely. This is what we call as civic education based on the Constitution or the
constitution, commonly known as 'civic education' or citizenship education.
Certainly among the state institutions that exist, the most decisive role in this
regard is the Government. The government was the one who has everything all the
resources, whether in the form of information, funding and facilities, and personnel
necessary to ensure the success of civic education efforts based on the constitution and
civic education in the broadest sense. Besides the executive's duties within the
responsibility of the government. However, institutions such as the MPR, DPR, DPD,
MK, and others are also responsible to promote awareness of the constitutional either
directly or indirectly. Moreover the Assembly is an institution to change and set the entry
into force of the Constitution, as well as oversee the implementation of the Constitutional
Court interprets the Constitution and the constitution through judicial decision, is
concerned with the successful constitutional awareness education efforts in the fairy life
of the state.
Therefore, the Law on the Structure of 2003 determines that one task is to
promote the Assembly Leaders Assembly decision, which one of them is the Constitution
1945 changes. Although the task was not the task of constitutional institutions of the
MPR, but the legal duty of the Assembly leadership by the Law on the Structure
determined as a separate office, correctional work of the Assembly as a state institution,
either for its own members or for the benefit of the public, especially regarding changes
to the Constitution 1945 is indeed a necessity.

15

But because it is the task of constitution correctional noble task which is very
large, it is appropriate and other institutions should also ease the burden of leadership of
the Assembly, especially for the popularization of the constitution for the wider
community. The Court is also very necessary to take the responsibility to develop
education and correctional efforts constitution, not only with respect to matters relating to
the Constitutional Court, constitutional rights and obligations of citizens, and others
relating to the escort and interpretation of the Constitution 1945, but also about the need
for correctional Constitution 1945 in a broader sense.
Education and popularization activities constitution, in essence, including the
work of the executive or government. Therefore, the main responsibility lies with the
government either through educational institutions, as well as broadcasting institutions,
because the government was the one who mastered more information, financial
resources, facilities and infrastructure, manpower, expertise, and networks that can be
expected support the efforts of correctional and educational constitution. The role of
correctional constitution is intended to establish the constitutionality of the integral in the
perceptions, views, attitudes follow, as well as a growing public opinion in community
life and nation.
Similarly own society, political figures, religious leaders, non-governmental
organizations, community organizations, and all institutions that play a role in civil
society (civil society), in business or business environment (market), and within the state
organs, organs of the area independently or together in synergy was supposed to be
supportive, helpful, and initiated various efforts for the success of correctional and
educational awareness activities is constitutional. That way, we can expect that
Constitution 1945 will truly be a "living constution", so that the constitutional duty of the
Constitutional Court itself as "the guardian and the final sole interpreter of the
constitution"to be more easily realized.
C. CLOSING
1. Conclusion
Emancipation is more a manifestation of the need to establish an ongoing basis
and expand the "practice of freedom" (practice model/institutions of freedom) through the
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practice of liberation (practice model of liberation) are constantly changing. While the
contingency that could literally be interpreted as events, expectations must be achieved in
the future but probably not predicted in the present moment is a way to imply a kind of
relativism against any standard forms of existence in a world at once present a certain
pragmatism teruatama facing the flow of changes in attitude continuous and
unpredictable. To understand this situation, the conscious attitude of 'meta-stable' is one
way to understand Rechtspositie Court and the Court re-positioning efforts are more
appropriate in our constitutional post-birth of the Act 8 of 2011. Finally, advantages and
disadvantages of the Act would stumble stones named test hospitalization moment, so the
contingency is the attitude of emancipation and follow the most "brilliant".
2. Recommendation
Every citizen and state officials should study and understand the Constitution
1945 through a variety of ways and a variety of media. For that information about the
constitution should be available for easy access to quickly and easily understood.
Therefore, the increase in realized constitutional culture is not only done through face-toface forums, but through various forms of packaging and different media. Thus
improving the quality of understanding of the constitution and strengthening the culture
should be aware of the ideological agenda of the nation as a whole, both by the Court and
other institutions. This can be done by any process of education and training and expand
the activities of field experience in the life of society, nation and state. The Court should
be the anchor for the collective consciousness of law to strengthen the ideology of
cultural nationalism in order to patent the majesty and dignity of the nation.

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