The Influence of Politics in Legal Formation in Indonesia

Taking note of the development of Indonesia’s legal system, we will see the existence of specific and interesting traits to be studied. Prior to the legal influence of Dutch colonialism in Indonesia there were different customary laws and Islamic laws from different indigenous peoples in Indonesia from each different kingdom and ethnicity. After entering the Dutch colonists brought their own laws that are largely a concordance with the laws in force in the Netherlands that is written law and legislation are positive. Nevertheless the Dutch adhered to the customary law politics, which let the customary law apply to the indigenous Indonesian people and European law Applies to the European class who live in Indonesia (Dutch East Indies). Thus in the Dutch East Indies law pluralism prevailed. The development of law in Indonesia shows the strong influence of colonial law and abandoned customary law.

Therefore, in looking at the legal issues in Indonesia should be viewed from the historical reality and the development of Indonesian law. At the present time there are differences in the way of view of the law among Indonesian society. Dissatisfaction with law enforcement and the handling of various legal issues stems from unequal views of what is meant by law and what is the source of the law.

  • The Role of Structure and Political Infrastructure

According to Daniel S. Lev, the most decisive in the legal process is the conception and structure of political power. That is that the law is in many ways always a political tool, and that the place of law within the state, depends on the balance of politics, the definition of power, the evolution of political, economic, social, and so on
Although then the legal process referred to above is not identified with the intention of forming the law, but in practice often the process and dynamics of the formation of the law experiencing the same thing, namely the conception and structure of political power that prevail in the community that determines the establishment of a legal product. So to understand the relationship between politics and law in any country, it is necessary to study the cultural, economic, political power in society, state institutions, and social structures, in addition to their own legal institutions.

Sufficient legal understanding should not only see the law as a set of rules and principles governing human life in society, but it must also include the institutions and processes necessary to bring about the law in reality.

From this reality is realized, the existence of a valid space for the entry of a political process through the container of political institutions for the formation of a legal product. Accordingly, there are two key words that will be examined further about the influence of power in the law that includes the word “process” and the word “institutions,” in realizing a legislation as a political product. The influence will be more visible on the product of legislation by a political institution that is strongly perceived by large political forces in political institutions. In connection with this issue, Miriam Budiarjo argues that political power is defined as the ability to influence the general policy (government) of both its formation and its consequences, in accordance with the holder of power.
In the process of formulating the rule of law by political institutions the role of political forces that sit in political institutions is very decisive.
In the process of formulating the rule of law by political institutions the role of political forces that sit in political institutions is very decisive.

 Political institutions formally given the authority to form the law are merely an institution that stops without being filled by them given the authority for it. Therefore political institutions are only a mere tool of a group of political power holders. Political forces can be seen from two sides: the power side possessed by formal political forces (political institutions) in this case which is reflected in the power structure of state institutions, such as the President, the People’s Legislative Assembly and other state institutions and the political power side of Political infrastructure is like: political parties, public figures, civic organizations, non-governmental organizations, professional organizations and others.Thus it can be concluded that the formation of a legal product is born of the influence of political power through a political process within the state institution given authority for it.

As described in the previous section, legal theories that have a strong influence on the concepts and implementation of legal life in Indonesia are the legal theory of positivism. The influence of this theory can be seen from the dominance of the concept of codification of law in various types of law applicable in Indonesia has even propagated to the international and traditional law system. Similarly, in the practice of law in society, The influence of positivism flow is very dominant. The so-called law is always associated with legislation, beyond that, is considered non-legal and can not be used as a legal basis. Values ​​and norms outside the law can only be acknowledged where permitted by law and only to fill in the blanks of legislation that have not or have not regulated the matter.

The influence of political forces in shaping the law is limited by its enactment of constitutional system based on checks and balances, as adopted by the 1945 Constitution (UUD 1945) after the amendment. If examined more in the material changes in the 1945 Constitution on the implementation of state power is to reinforce the power and authority of each state institutions, reinforce the limits of the power of each state institution and place it based on the functions of state administration for each state institution. Such a system is called a system of checks and balances, which is the limitation of the power of every state institution by the constitution, there is nothing supreme and nothing is low, all the same are set according to their respective functions.

Under such a system, it provides an opportunity for every citizen who feels impaired of his constitutional right by the political product of the legal-forming Legal institutions to file a lawsuit against the state institution. In the event that the violation is committed through the formation of a law, a complaint may be filed against the Constitutional Court and in respect of all legal products of other political institutions under the law filed with the Supreme Court.

  • Influence of Interest Groups in Legal Formation

Beyond the political forces that sit in political institutions, there are other forces that contribute to and influence the legal product that political institutions emerge. The strengths of various interest groups are guaranteed and acknowledged existence and role according to the rule of law as a country that embrace the democratic system, such as businessmen, scientific figures, groups of social organizations, professional organizations, religious leaders, non-governmental organizations and others. Even the Act. R.I. No. Law No. 10 of 2004 on the Establishment of a Law of Regulation, in Chapter. X affirmed the participation of the community, which is stipulated in Article 53: “The public has the right to give input orally or in writing in the framework of preparing or discussing the Draft Law and Draft of Regional Regulation.”

The facts above show that the influence of society in influencing the formation of the law, have a place and appreciation so vast. Especially since the demands of the people in pushing for reforms in all fields have been won, marked by the fall of the new order under the authoritarian Suharto leadership, the reform era has brought major changes in all fields marked by the birth of a number of laws that give such a large and wide appreciation. In this case, it reminds us of what the public philosopher Walter Lippmann expressed, that the contemporary opinion has shown itself as a dangerous decision-making master when what is at stake is a matter of life.

The fact that needs to be realized is that the intensity of the influence of the people’s demands on the formation of the law and the birth of legal decisions can occur if the demands of justice and public order are not fulfilled or disrupted Because a sense of injustice and disruption of public order will lead to a revolving opinion such as a growing snowball And harm if it does not get a channel.

  • Indonesia’s Political System

To understand more about the mechanism of law formation in Indonesia, it is necessary to understand the political system adopted. The political system reflects how state power is exercised by state institutions and how the filling mechanisms of positions in the state institutions are conducted. These are two important things in the political system related to the formation of the law.

Some important principles in the Indonesian political system related to this description are systems based on the principles of the rule of law, constitutional principles and the principles of democracy. These three principles are interrelated and mutually supportive, losing one of the principles alone will result in the limping of the ideal political system adopted. The principle of a legal state contains three main elements, namely the separation of powers – check and balances – the principle of due process of law, the guarantee of an independent judiciary and the guarantee and protection of human rights. The constitutional principle requires that every state institution implementing state power moves only in the corridor set by the constitution and based on the mandate given by the constitution.

With the democratic principles of public participation / people running well in all fields, both in the process of filling the positions in the political structure, as well as in the process of determining the policies taken by various political structures. Democracy therefore also requires transparency, freedom and civil rights, mutual respect and respect and adherence to mutually agreed rules and mechanisms.

With such a political system various political products in the form of political policy and legislation are born. In such a paradigmatic framework the political product as the source of law as well as the source of the binding force of the law is expected – as adopted by the positivist flow – accommodates all the interests of the various layers of society, the moral and ethical values ​​commonly accepted by society. So what is meant by law is what is in the legislation that has been endorsed by state institutions that have authority for it. Moral and ethical values ​​are considered to be contained in the legislation because it has been through a process of people’s participation and understanding of the popular vote. In the event that the product is deemed to violate the basic norms and values ​​which the community has been denied and to the detriment of the rights of the people guaranteed by the constitution, the people may sue the state to cancel the regulations it has issued and declared invalid. Thus the moral and ethical values, the interests of the people who exist in social realities remain the intended law that will always control and create new positive law through the process of change, correction and the formation of new legislation.