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:
- Supreme Court Justice as Agent of Change.
- 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
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