RECONSTRUCTION OF SETTING JUDICIAL REVIEW OF LEGAL MATERIAL BY INDONESIA SUPREME COURT

International Journal of Civil Engineering and Technology (IJCIET) Volume 9, Issue 2, February 2018, pp. 727 732, Article ID: IJCIET_09_02_069 Available online at http://http://www.iaeme.com/ijciet/issues.asp?jtype=ijciet&vtype=9&itype=2 ISSN Print: 0976-6308 and ISSN Online: 0976-6316 IAEME Publication Scopus Indexed RECONSTRUCTION OF SETTING JUDICIAL REVIEW OF LEGAL MATERIAL BY INDONESIA SUPREME COURT Retno Mawarini Sukmariningsih Universitas 17 Agustus 1945 (UNTAG Semarang), Faculty of Law Jl. Pawiyatan Luhur Bhendan Duwur Semarang, 50235 Indonesia ABSTRACT This research is based on the existence of phenomenon of the existence of Supreme Court Regulation concerning rights of material judicial review. This regulation is believed to have exceeded the capacity substantially because there is overlapping regulation settings. The regulation of the judicial review right on legal material must be placed in the legal product which formation involves the participation of the people. The general objective of this research is to contribute ideas to the government or the legislative body so that the judicial review rights conducted by the Supreme Court can be regulated with the law in order to maintain consistency and harmonization of legislation and strengthen Indonesia as a democratic constitutional state based on Pancasila. Furthermore, the implementation of the judicial review right on legal material is also one of the forms of normative oversight vertically to legislation under the Act which is deemed to be contrary to the higher laws and regulations. By using the approach of empirical normative with qualitative analysis, the results show that the benefit of this research is to give thought contribution to the judicial institution for the realization of the quality of decision which fulfill the principle of justice, benefit and legal certainty. Furthermore, the importance of integrity of Supreme Court judge as one form of strengthening supreme court decision. Key words: reconstruction setting, judicial review, legal material, Supreme Court, authority. Cite this Article: Retno Mawarini Sukmariningsih, Reconstruction of Setting Judicial Review of Legal Material by Indonesia Supreme Court. International Journal of Civil Engineering and Technology, 9(2), 2018, pp. 727-732. http://www.iaeme.com/ijciet/issues.asp?jtype=ijciet&vtype=9&itype=2 1. INTRODUCTION The desire to create a state based on the law is written in Article 1 Paragraph (3) of the Constitution of the Republic of Indonesia of 945 which states that the state of Indonesia is a state of law, so the judicial power is a very strategic position (McIntyre, 2005). To make it happen in performing the functions of the judiciary must implement the principles of law that http://www.iaeme.com/ijciet/index.asp 727 editor@iaeme.com

Retno Mawarini Sukmariningsih is independent in law enforcement and justice (Allan, 2003). One of the pillars of independent judiciary authority is shown by the quality of the judge's decision. Furthermore, every judge's decision must be based on the responsibility of the judge in order to realize an independent judiciary. An instance is the Supreme Court's decision refusing to examine Government Regulation No. 14/2005 on National Education Standards, as it does not meet the formal requirements in this time limit in the submission of Material Rights, makes our children victims because the measure used in the graduation is only the national examination. It is not uncommon for children from elementary school level to senior high school who have achievement at international level just do not pass in national examination and declared not pass. At a glance from the example of the issue of right to material reviewing the formal truth becomes very dominant rather than the material truth. It must be considered that there are some aspects to consider, namely the principle of justice, the benefit (general interest) and legal certainty. Ironically the time limit for reviewing is only found in the Supreme Court Regulation. Criticism is directed to a judicial institution so that the demand for reform in the field of law in order to optimize the role of state institutions in the current reform era. The renewal of legal products through the development of legal materials is actually projected to build the social values and the interests of the society in force in Indonesia, while also encouraging the growth of creativity and involving the community in supporting the implementation of governance, along with the consideration to the economic and technological development (Rian, 2017; Nugroho et al., 2017), and the environmental aspect (Kurniawan, 2017). One impact of the failure of the legislation made by parliament includes the filing of request for judicial review of material in the Supreme Court because perhaps the democratic system do more to democracy transactional not democratic transformative so that the public interest be overlooked in the formation of local regulations, except judicial review - the invention is indeed due to its development demands to be reviewed. The influence of the ruler loaded with political interests to the Supreme Court is not just in terms of Supreme Court institution, but also on the judicial bodies according to the Constitution of the Republic of Indonesia of 1945 under the Supreme Court. Besides this influence, it also concerns the arrangement. In this connection, Mahfud (2003) concludes that authoritarian politics produces elitist legal products, and democratic politics gives birth to a populist legal product. This research is based on the existence of phenomenon of the existence of Supreme Court Regulation concerning judicial review of material. The regulation of the judicial review must be placed in the legal product whose formation involves the participation of the people, in the forms of law. The general objective of this research is to contribute ideas to the government or the legislative body (the People's Legislative Assembly) so that the judicial review rights conducted by the Supreme Court can be regulated with the law in order to maintain consistency and harmonization of legislation and strengthen Indonesia as a democratic constitutional state based on Pancasila. 2. METHODS This research method is using a qualitative approach by observation and review of the literature. The method used in this research is empirical normative. with qualitative analysis (Patton, 1999). The normative referred to in this study is to review the legislation relating to the research focus of the legislation under the Law ever reviewed materially by the Supreme Court as well as relevant regulations to the research focus. In addition to legislation, research is also conducted through research using empirical data that can be obtained from the implementation of the Judicial review of legal material by the Supreme Court in the form of a legal decision. http://www.iaeme.com/ijciet/index.asp 728 editor@iaeme.com

Reconstruction of Setting Judicial Review of Legal Material by Indonesia Supreme Court 3. RESULTS 3.1. Authority of the Supreme Court Competence review of regulations under the Law are allegedly contrary to the laws and regulations on it, given to the Supreme Court (Majone, 1999). While the review to Law, if it is contrary to National Constitution given to the Constitutional Court. The judicial review is a means of control for legislation (Whittington, 2005; Cappelletti, 1971; Rogers, 2001). The definition of the right to review either by bibliography or in practice is known two kinds of right to review. The first is the right to review legal material and the right to review legal formal, the right to review material is an authority to investigate and then to assess whether a legislation of its contents is in accordance with or contrary to higher-ranking rules, and whether a particular authority is authorized to issue a particular rule. The right to review the formal is the authority to assess the procedure as determined by law and regulation (Soemantri, 1984; Parsons & Mietzner, 2009) The authority of the Supreme Court on reviewing material to the regulations under the Act has been written in the Law No. 5 of 2004 on the Amendment Law No. 14 of 1985 on Supreme Court and Law No. 3 of 2009 Concerning the Second Amendment to Law No. 14 of 1985 regarding the Supreme Court (Cammack & Feener, 2012; Lindsey, 2008). Moreover, the implementation of reviewing material of statutory regulations under the law has been regulated by the Supreme Court Regulation No. 1 of 2004 on Supreme Court Rights to Review and amended by Supreme Court Regulation No. 1 of 2011 on the judicial review of legal material. The fundamental change to the Supreme Court Regulation is the absence of a deadline for submission of a judicial review of legal material application at the Supreme Court. Article 31 Paragraph (2) of Law No. 5 of 2004 states that the Supreme Court has the authority to declare unlawful legislation under the Law for reasons contrary to higher laws and regulations or its formation does not meet the applicable requirements. Paragraph (3) states that the decision on the declaration of the invalidity of the legislation may be taken in relation to the examination on the cassation level or on the basis of a direct request to the Supreme Court. Reviewing of legislation under the laws of the statute is a form of reviewing that its object is the entire rules are set up, and binding general rank under the law and the benchmark review is a law, or judicial review on the legality of regulation. The 1945 Constitution does not govern the examination of laws and regulations with the object of legislation under the law. The first time the reviewing of legislation is regulated in Article 26 of Law No. 14 of 1970 concerning the Basic Provisions of Judicial Power, and Article 11 of the Decree of the People's Consultative Assembly No. III/MPR/1978, and Article 31 of Law No. 14 of 1985 regarding the Supreme Court. This indirectly implies the principle of checks and balances, since regulatory reviewing is essentially applicable if the principle of separation of powers and checks and balances is adopted and implemented in the administration of the state. Reviewing of legal products under the Act constitutes the authority of the Supreme Court intended to place a harmonization between a higher legal regulation with lower regulation (Chemerinsky, 2016; Deakin, 2006). Lower legal products mostly place rules on implementation guidelines or technical guidelines, to carry out the will of higher legal regulations. Assuming that the harmonization of the guidelines and the technical guidelines used by the Government in implementing the rule of law higher the better government, if the government the better it will be realized that the clean governance and strong governance are indicated from the logical assumption that the authority is a multiple effect of clean http://www.iaeme.com/ijciet/index.asp 729 editor@iaeme.com

Retno Mawarini Sukmariningsih governance (Cashore, 2002; Fukuyama, 2017; Hajer, 2011; Héritier & Lehmkuhl, 2008; Lynn Jr, Heinrich, & Hill, 2000). For that, clean and strong are not equivalent to clean as an indicator of the results of supervision outcomes and authoritative is a benefit indicator. However, clean and strong governance, has become a unified common term used to identify clean and authoritative government. 3.2. Reconstruction of Case Arrangements of the Application of Judicial Review of Legal Material at Supreme Court In reviewing legislation under the law against higher regulations which powers are granted to the Supreme Court, its implementation is heavily influenced by the political configuration adopted at the time. In principle, the reviewing of legislation is closely linked to the problem of democracy in the sense that the principle of reviewing that can be done if the administration of government is implemented democratically by an independent judiciary. On other hand, if political configuration is authoritarian, then reviewing these regulations cannot be implemented Subsequently, the nature of settling every case of judicial power usually adheres to the principle of examination in two levels means examination consisting of first degree judiciary (original juridiction), and second level or judicial appeal (appellate juridiction). First level judidiction is a preliminary examination, hearing and deciding cases in the district court. The second level or so-called appeals court is a re-examination of cases that have been decided by the court in the first instance of court. It can be said that the second level of examination is the same as in the first level court. The examination of the appeals level is the second and final examination. The examination of a case is an examination as a whole, both in terms of its events and in terms of law. First level examination and second level examination is usually called judex factie. The court's decision on the first appeal may be appealed to the Court of Appeal by the parties concerned, unless the law otherwise provides (Article 26 paragraph (2) of Law No. 48 of 2009), while in the examination of cassation itself is not an examination in the third, because the appeal is only a case investigation in terms of application of the law only (judex juris) and no longer check the facts or events. This can be seen from the reasons of the parties in filing an appeal that is based on legal reasons only. The principle of examination of two levels namely first jurisdiction and court the second judicial or appellate juridiction do not apply to the petition of the judicial review of legal material because in the Supreme Court Regulation No. 1 of the of 2011 About the Judicial Review of Legal Material Article 2 Paragraph (1) the application of objection shall be submitted to the Supreme Court by (1) going directly to the Supreme Court; or (2) through the District Court in charge of the jurisdiction of the place of the petitioner. The petition for judicial review rights does not adopt an examination based on the two-tiered principle because the judicial review rights decision of the law under the Act by the Supreme Court is final and binding. In its nature, Sopreme Court as a judicial institution in the examination of the case usually adheres to the examination of the two-level principle, but in the implementation of the judicial review of legal material in the Supreme Court is only final and binding. Judges' rulings should not deviate from Pancasila or against the interests of the state and nation of Indonesia (Sudikno, 2003 ). This is in line with notion that Pancasila is the moral basis for the order of Indonesian law (Soejadi, 1999). The reinforcement of the Supreme Court decision must be initiated from the quality of the judge's decision that needs to pay attention to the comprehensive dimension including the alignment of the mind in performing its duties as a judge and always guided by an objective view. Thus, the essence of the task of the judge is to give a definitive settlement of the case that confronted the judge based on the principles of legal certainty, fairness and expediency in accordance with the law. Furthermore, http://www.iaeme.com/ijciet/index.asp 730 editor@iaeme.com

Reconstruction of Setting Judicial Review of Legal Material by Indonesia Supreme Court the principle of Supreme Court independence in the judicial authority becomes essential. Thus, the judge as the important party in the sense of community justice can make it happen in every judgment or verdict. 4. CONCLUSIONS Implementation of judicial review rights og legal and regulatory material under the laws that are contrary to higher laws and regulations are implemented by the Supreme Court, This is a form of normative supervision of the vertical laws and regulations in order to maintain consistency and harmony. There is a positive correlation between regulatory. This relationship can be explained that, if the arrangement is clearly aspirational and populist then the testing of legislation can be implemented as part of building good governance towards the realization of a clean and authoritative government, but otherwise if the regulation is limitative and the agency authorized to implement it is very limited, then the implementation of the regulatory testing is difficult to implement. The Supreme Court Regulation on the judicial review on legal material as a procedural law has already exceeded the capacity substantially due to the overlapping arrangement. So that an immediate revision of the the judicial review right arrangement must be made into the legal product whose formation involves community participation. Because the petition for judicial review rights in the Supreme Court is final and binding, while the nature of the judiciary is based on two principles in the examination, namely first and second level examination. Furthermore, the effectiveness of the Supreme Court decisions is usually only supported by the opposition forces that encourage the government to exercise court decisions and collective consciousness. In the future, it is necessary to formulate a judge decision that is closer to justice, benefit and legal certainty. REFERENCES [1] Allan, T. R. (2003). Constitutional justice: A liberal theory of the rule of law. Oxford University Press on Demand. [2] Cammack, M. E., & Feener, R. M. (2012). The Islamic legal system in Indonesia. Pac. Rim L. & Pol'y J., 21, 13. [3] Cappelletti, M. (1971). Judicial review in the contemporary world. MICHIE. [4] Cashore, B. (2002). Legitimacy and the privatization of environmental governance: How non state market driven (NSMD) governance systems gain rule making authority. Governance, 15(4), 503-529. [5] Chemerinsky, E. (2016). Constitutional law. Wolters Kluwer Law & Business. [6] Deakin, S. (2006). Legal Diversity and Regulatory Competition: Which Model for Europe?. European Law Journal, 12(4), 440-454. [7] Fukuyama, F. (2017). State building: Governance and world order in the 21st century. Profile Books. [8] Hadjon, P. M. (1985). Understanding on the Act of Governance (Bestuurhandeling), Printing Djumali, Surabaya. [9] Hajer, M. (2011). The energetic society. In search of a governance philosophy for a clean economy. The Hague: PBL Netherlands Environmental Assessment Agency. [10] Héritier, A., & Lehmkuhl, D. (2008). The shadow of hierarchy and new modes of governance. Journal of public policy, 28(1), 1-17. [11] Asshidiqie, J. (2005). Constitutional Reviewing Models in Various Countries, Constitution press, Jakarta. [12] Kurniawan, R. (2017). Effect Of Environmental Performance on Environmental Disclosures of Manufacturing, Mining and Plantation Companies Listed in Indonesia http://www.iaeme.com/ijciet/index.asp 731 editor@iaeme.com

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