The Concept of Rule of Law and Its Implementation in Indonesia

PERTANYAAN

What is the rule of law and how is it implemented in Indonesia?

INTISARI JAWABAN

Rule of law is a concept of a state of law where the law has the highest position in the administration of a state. Indonesia as a state of law also adopts the concept of rule of law.

How is the application of the rule of law in Indonesia?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Konsep Rule of Law dan Penerapannya di Indonesia, written by Valerie Augustine Budianto, S.H., and was published on Thursday, 7 April 2022.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Before answering your main question about the rule of law and its implementation in Indonesia, it is better to first understand the concept of the rule of law.

Rule of Law

Basically, the rule of law doctrine is the concept of the state of law, which means that the law holds the highest position in the administration of a legal state.

This term was proposed by A.V. Dicey. He outlined 3 important elements in the Rule of Law, among others:[1]

1. Supremacy of Law

It is intended that the law can protect all citizens without any intervention from any party by enforcing and placing the law in the highest position. In this case, everyone can only be subject to legal sanctions when the person concerned commits an offense.

2. Equality Before the Law

Simply put, this means that every citizen has equal standing in the eyes of the law.

3. Fair and Impartial Legal Process (Due Process of Law)

This element guarantees citizens' rights to be processed according to applicable procedures, in this case, a fair, impartial, proper, and correct legal process.

Summarized from Between the Definition and Practice of Rule of Law in Indonesia, the following are the requirements of representative government under the rule of law, namely:

1. The existence of constitutional protection;
2. The existence of free and impartial courts;
3. The existence of free elections;
4. The existence of freedom of expression and association;
5. The existence of opposition duties; and
6. The existence of citizenship education.

Also read: The Meaning of Trias Politica and Its Implementation in Indonesia

Implementation of Rule of Law in Indonesia

As a state based on law (rechstaat) and not based on power (machstaat), Indonesia also applies the concept of Rule of Law as stated in Article 1 section (3), Article 27 section (1), and Article 28D section (1) of the 1945 Constitution.[2]

According to Jimly Asshiddiqie, the content of the regulation indicates the fulfillment of the concept of the rule of law in Indonesia, namely:[3]

1. Recognition of the principle of the supremacy of law and the constitution;
2. The principle of separation and limitation of powers;
3. The existence of human rights guarantees;
4. The existence of a free and impartial judiciary that guarantees the equality of citizens before the law, and guarantees justice for everyone including against abuse of power by those in power.
5. One of the manifestations of the rule of law in Indonesia can be seen from the application of laws and regulations as the foundation of the role of state institutions and servants in the administrative system in Indonesia.

The application of the rule of law can also be seen from the application of the Pancasila legal system in Indonesia. In this case, the judge has the right to interpret and argue other than the provisions of the law in deciding a case because the law is seen from two sides, namely formally and materially.[4]

Also read: The meaning of the 1945 Constitution as Supreme Law

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

The 1945 Constitution of the Republic of Indonesia.

Reference:

1. Jimly Asshiddiqie. Konstitusi dan Konstitusionalisme Indonesia. Jakarta: Sinar Grafika, 2005.
2. Zaid Afif. Konsep Negara Hukum Rule of Law dalam Sistem Ketatanegaraan Indonesia. Jurnal Pionir LPPM Universitas Asahan, Vol.2 No.5. July-December 2018.

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[1] Zaid Afif. Konsep Negara Hukum Rule of Law dalam Sistem Ketatanegaraan Indonesia. Jurnal Pionir LPPM Universitas Asahan, Vol.2 No.5. July-December 2018, p. 56.

[2] Zaid Afif. Konsep Negara Hukum Rule of Law dalam Sistem Ketatanegaraan Indonesia. Jurnal Pionir LPPM Universitas Asahan, Vol.2 No.5. July-December 2018, p. 56.

[3] Jimly Asshiddiqie. Konstitusi dan Konstitusionalisme Indonesia. Jakarta: Sinar Grafika, 2005, p. 69.

[4] Zaid Afif. Konsep Negara Hukum Rule of Law dalam Sistem Ketatanegaraan Indonesia. Jurnal Pionir LPPM Universitas Asahan, Vol.2 No.5. July-December 2018, p. 59.