Role of Supreme Court Justice as Agent of Change to Increase Quality of Ruling in Manifesting Law and Legal Reform

Abstract

Since Proclamation of Indonesian Idependent dated August 17, 1945, at that’s time national public figures (the founding fathers) had choosen and agreed to determine that Indonesia State is that based on laws. The laws  which may be made as pijakan and life foundation of nation and state  in order to manifest  objective and ideals of independence.

In Constitution 1945,  statement of Indonesia State as Law One it just had been specified in its elucidation, nevertheless, post reform era of 1998, ie, by third amendement  of Constitution 1945, then, such statement had been  affirmed in body of Constitution 1945 Chapter I (Form and Sovereignty) Article 1 paragraph 3 ennunciated  : "Negara Indonesia is Law One[1])

Of course, as law state, such law enactment in State is not released from law history had ever been applied in community of such nation previously.  Law state applied in Indonesia is law system "Civil Law", i.e, codification or written law system.[2])

Such national and state life of Indonesia proclaimed as law state had taken place in tide and ebb condition either consistently or inconsitently

In climate changes of global society  community signed by  extraordinary advance in science and technology, information technology specially,  as culmination point  which result in reform waves of Reform yang melanda  unitary state by collaps of regime of New Order on May Mei 1998 by demanding to return format rightly and correctly (reform) in terms of national and state life in field politic, economic and law specially.[3]

Speak on reform, unless  aspect of right and correct restructuring (reforming) of national and state order, of course, by consequency to do transformation/changing against  older order to manifest  idealized order  in accordance with objective of Independence Proclamation. In this case specially, the outhor will discuss  in terms of law and  in field of law enforcement by authority of

In field of law and that of law enforcement through authority of Judicial affairs   (The Judge ) more specially..

"Law role in development is to ensure that such changes occurred regularly. There is assumption which may be said near confidence that such regular change may be assisted by legislations or even 
court’s award  or combination of them” [4])

Indonesia which follow Civil Law system, i.e, law in written or Codefication law, of course, such law codification will not be able to accommodate of all community aspiration.

Additionally, in reform and transformation era  in which change and progress had occurred so speed, hence, although legislators who work so rapidly, but, problems arising in community requiring more faster regulation. Hence, frequently, in community occurred any problem which of legislation had not been passed or in oher word, there is  law vacuum.

In this  formal system, such law vacuum contention is conducted by Judge  when to his/her presented any case being not regulated in prevailing legislations,impossibly,  it may be applied although it had been interpretated.

Clause of Article 24 paragraph 1 of  Laws  No 4 of 2004 on Judicial affairs Authority as enunciated   : " Judge as law and justice enforcer should exhume, follow and understand  law values  existing in community..

The word of exhume assumed that  such law is exist, but it was still hidened, to bring it up the surface, it should be exhumed, discovered and forwarded, as not nothing, then, it is created. Scholten said that in any such human behavior there was law. Whereas, at anytime human had behaven or created, so that, it may be said that such law had existed, and human only exhume, seek out and find it.[5]).

Activities of Judge fo fulfil law vacuum in this law system is by  conduct law creation. Such law creation may be conducted by  discovering law (rechtsvinding) and law creation
(rechtschepping), hence, none of case may not be  judged and none of problem may not be legislated. Additionally, when such law discovery and law creation conducted by Supreme Court Justice, it’s very benefit  for law world.

Court Supreme as instrument  for law and truth enforcement so as not    get stumbled  to being not up to date. Also as last instance of court, it is wished being able to bring about innovative  judgement (jurisprudence) in accordance with justice taste of community. Supreme Court Justice as law and justice enforcer should should exhume, follow and understand  law values  existing in community. When any rules and provisions had not been obvious or regulated yet, the Judge should get action  based on to settle case. In other word, to decide what is law, although rules and provisions  had not assisted [6]).

Based on description above, refer to the title of this  minor paper, then, the author  may pick two (2) variables contained therein to be discussed more details as follows:

1. Supreme Court Justice as  Agent of Change.
2. Quality of Supreme Court Justice’s ruling  in law establishment  and law reform.

[1] ) General Secretariate of MPR-RI (People Consultative Assembly), 2005,  Constitution of Indonesia State  of 1945, page  59

[2] ) Drs. H. Abd. Page i, Syaram, SH.MH, www.pta.palangkaraya.net

[3] )   Supandi,Yuridical responsibility against discretion of  governmental officials  in perspective of  State Adminstration Law and  pertanggungjawaban yuridis terhadap diskresi pejabat pemerintah dalam perspektif Hukum Administrasi Negara dan AAUPB, Jakarta, 2008

[4] )   Mochtar Kusumaatmaja, Pembinaan Hukum dalam rangka pembangunan hukum Nasiona, LPH & Krimonologi Univ. Pajajaran, Bandung, 1979

[5] ) Sudikno Mertokusumo, Penemuan Hukum sebuah Pengantar, Liberty Yogyakarta, 2006, page  47

[6])    M. Hatta Ali, peran Supreme Court Justice dalam penemuan hukum (Rechtsvinding) dan Penciptaan Hukum (Rechtschepping) pada Era Reformasi dan Transformasi, Bunga Rampai Komisi Yudisial dan Reformasi Peradilan, 2007, Page  86