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Civis 001/2015

Important Principles of a Law State

 

Furthermore, in order to be called as a law state, a state is required to have several elements of important principles in administrating the state.

The first required element of a law state is the recognition that both society and the ruler respects and upholds constitution and the law, in which all actions of the government or state must be based on the law that has been applied so far.

The second required element is the recognition and respect towards human rights in accordance to the Constitution, along with the protection from human rights violation for the citizens.

And the third element is the principle of fairness that is free and neutral, that also guarantees the equality of every citizen in front of the law, and guarantees fairness for everyone including towards misuse of authority by the ruling party. These elements keep on developing, along with development of time.

Jimly Asshiddiqie stated that there are at least twelve basic principles of a law state that applies in the current era. Overall, these twelve principles function as a main pillar of support for the standings of a constitutionally democratic state to be called as a law state. These twelve basic principles are: a. supremacy of law; b. equality in law; c. the principle of legality; d. limitation of power; e. independent executive organs; f. a free and neutral court; g. a state administrative court; h. a state planning court; i. protection toward human rights;  j. democratic; k. functions as a tool to reach the goals of welfare; l. transparency and social control.

In a law state, protection and respect towards human rights is one of its main pillars. Protection towards human rights is internalized widely in the society in order to promote respect and protection of human rights as an important aspect of a democratic law state. Every human possesses rights and obligations which is free and fundamental from the day they were born. The shaping of the state and its administration of power should not decreases the meaning of freedom and human rights itself. Even nowadays, one of the characteristics of a failed state is when the state fails to protect and enforce the rights of their people.

Supremacy of law or also known as the principles of legality requires law to be the basis of all state actions, and law itself has to be good and fair. Good because it is according to what the people expects from law, and fair because the basic purpose of all law is fairness. There are four main reasons to demand for a state to be governed based on the law: (1) assurance of law, (2) the demand for equal treatment, (3) democratic legitimization, and (4) the demand of the mind.

All principles that become the basis of a state mentioned above can be defended through a testing mechanism that is done in front of a free, neutral, and independent court. Every person is able to appeal to the court regarding violations of law done by the state, government, or anyone that violates a person’s rights or harms the person. The court process also has to be based on the law that applies to everyone, including for the court itself in making the decision.

 

Closing

 

The Indonesian state was built on the foundation of law with the purpose to reach society welfare according with what the 1945 Constitution stated. The existence of all law state elements in Indonesia does not guarantee that it will achieve fairness for all people. The people still has to fight for it. Power tends to stray, thus through the principles and mechanism that exist, the people has to supervise to prevent deviation and straighten them up if needed.

Dr. Maruarar Siahaan

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.