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Civis 001/2015
Introduction
Point (3) of the first Article in the 1945 Constitution stated that Indonesia is a Law State. The statement sounded so simple. But what seemed so simple actually incorporates thoughts and concepts that was contemplated and developed for centuries.
From its first surfacing in Greece since the 4th century BC to spreading worldwide, the concept of Law State was one of the thoughts that developed dynamically. Now, almost every country declares themselves as a Law State in their constitution.
But we have to remember that such statement is not enough. There are prerequisites and measures that has to be fulfilled in order to be called as a Law State, along with the assurance and mechanism to defend what they refer as law.
What Is the Meaning of a Law State?
The 1945 Constitution before its amendment contained an explanation which stated that a Law based State is a state that is not based on power only and also not based on absolutism or unlimited power. Through such explanation, it may not be clear for us on how a state not based on power only or unlimited power could be called as a Law State.
Every country has its own constitution, as it is a document based on the agreement formulated by the founding fathers, which contains the state goals, basic thoughts on which the state was built, divisions of state power, the relations between state institutions and the relation of state and its citizens. The 1945 Constitution is a written constitution which functions as the ultimate law in Indonesia.
Frans Magnis Suseno stated that a Law State is based on a desire that state power has to be applied on the basis of a good and fair law. Law is the foundation of all the state actions thus the law itself has to be good and fair. Good, because it is in accordance with the people’s wishes of the law, and fair, because the main purpose of law is to achieve fairness. There are four main reasons for a state to be run based on the law: (1) assurance of law, (2) the demand for equal treatment, (3) democratic legitimization, and (4) the demand of the mind.
Dr. Maruarar Siahaan
Senior Fellow, the Leimena Institute
Maruarar Siahaan has chaired the Institut Leimena’s Legal and Judicial Studies Taskforce since 2013. He is also the Rector of the Indonesian Christian University in Jakarta. He has more than 30 years of experience as a judge in the Indonesian court system. He has served as the Chief Judge of the High Courts in Bengkulu and North Sumatera provinces. He was later appointed as an Indonesian Constitutional Court Justice in 2003—one of the first, since the institution had just been created under the Constititional Amendment—until his retirement in 2009. In 1995–1997, he represented Indonesia in the United Nations’ Ad Hoc Committee on the Establishment of an International Criminal Court. He is the author of The 1945 Constitution: A Living Constitution (2008) and Procedural Law of the Indonesian Constitutional Court (2011). He received his doctoral degree in law from the Diponegoro University in Semarang, Indonesia.