TUJUAN MEMBANGUN DAERAH

 By.SWILLSOND M.M.KWALIK





Membangun dari Daerah Its about Rudy thoughts and experiences on local governance INDONESIAN CONSTITUTIONAL COURT INTERPRETATION UPON STATE CONTROL: ASIAN VERSUS WESTERN IDEA INDONESIAN CONSTITUTIONAL COURT INTERPRETATION UPON STATE CONTROL: ASIAN VERSUS WESTERN IDEA Formulation Article 33 of Indonesia 1945 Constitution was mainly influenced by the rejection of individualism as the symbol of capitalism and colonialism. It used to be associated with the authoritarian control of economic sphere. The problem remain is the limitation of state control set by constitution upon economic spheres. In the same time, model laws prescriptions from International Donor such as IMF and World Bank has largely support privatization in many areas of economic spheres under the name of legal and judicial reform. This paper is trying to answer this old debated issue through the cases review of Indonesian Constitutional Court judgments relating with the economic rights vide article 33 of Indonesia 1945 Constitution while in the same time giving recommendation upon the issue of legal and judicial assistance from International donors. Keywords: constitutional rights, environment, social science, interpretation, law and development. INTRODUCTION Indonesia inherited a complex legal system whose main component parts were western law, adat law, and Islamic law. In the same time, the legal system in Indonesia has been marked by the long struggle to construct a system based on the pattern of the family or community as set forth by the Constitution. This complex legal system basically features the special characteristic of Indonesia community and made the birth of unification supporters and legal pluralism supporters. Amidst the desire to construct a strong unitary state, Seoepomo who was the great supporter of legal pluralism, however, was able to provide the basic provision in Indonesia 1945 Constitution to protect legal pluralism [1]. It may be said that Indonesia 1945 Constitution greatly accommodated the law from the top and law from below but did not give the way to negotiate between the two. However, attachment to the traditional communal life conflicts with modernization and industrialization. Since that time, the legal pluralism versus unification became great national issue. This never-ending contest between legal pluralism and unification is not only happen in Indonesia but also happen across the world in Asia [2], Africa [3], and Latin America [4]. Within the issue, old debated upon the interpretation of limitation of state control has not met the conclusion. Asian Crisis 1997 witnessed the fall of New Order and the beginning of democratization in Indonesia followed by the historic amendment of Indonesia 1945 Constitution. This financial crisis marked the visible process of legal and judicial reform in Asia especially in South East Asia, these reforms mostly promoted by international agencies such as International Monetary Fund, Asian Development Bank, European Bank for Reconstruction and Development, and The World Bank. Most of these multilateral banks and donor agencies are involved in programs that fall within the broad notion of legal and judicial reform. It is widely known that the legal and judicial reform led by international agencies gives implication to the policy choice and legal design in the respective countries. Asia and especially Indonesia worked closely with so many international donors in its development framework upon the legal and judicial reform. Within this so many international donors involvement, the engagement with legal transplantation pressure is evident. During that time, model laws mostly of American model were promoted and introduced in Asian countries backed by the academic justification under the name of legal transplantation and governance, several of those laws has become performance requirement for funding aid from those donors. Though influential critics have shared a negative conclusion that the post-crisis legal reforms were unsuccessful, they often have not conducted careful analyses into the substance of legal policies contained in conditionality and model laws. Most observers have questioned the viability of the compulsory mode, rather than the substance, of the model laws being “transplanted” from developed countries to developing and/or transition countries. On the other hand, their counterparts from the law and economics schools have dealt with the substance of model laws, but they often lack rigorous comparative legal analyses. Various explanatory frameworks have been articulated by the law and economics school, including contingency theory, legal origins, new comparative economic systems, but the weak logic behind these frameworks reveals the political desire to justify model laws reflecting U.S. standards of deregulation or “new liberalism.” In case of Indonesia legal and judicial reform assistance, the problem remain was the provision of state control in 1945 constitution before several judgment by constitutional court had not been addressed giving way for model laws supporting privatization signed by House of Representatives. Vacuum of legal interpretation upon the state control gave no direction of the legal and judicial reform direction giving a harsh way of such reform without considering the nation public law views. In the other side, under the rule of law missionaries, constitutionalism has been spread around the globe aided by many international donors. Since 1990s, most Eastern European societies have taken significant steps to reform their legal system including rewritten constitutions even though the results are still questioned. Most Latin American governments have acknowledged the need for rule-of-law reform and are taking steps toward it, or at least proclaiming that they will. In Asia, constitutionalism has been a part of formalistic rule of law reform package primarily to support legal reform related to commercial affairs [5]. At the same time, the rise of constitutionalism is followed by the gradual emergence and expansion of new constitutional court in the world political system as the part of institutionalization of constitutional structure [6]; these new judicial powers have been responsible for translating the constitutional provisions into practical guidelines to be used in daily public life and have been famously recognized as guardian of constitution. Cappeletti [7] in this regard concludes that judicial review or constitutional review is the method for effectuating the positivization of higher values expressed by constitutions. In addition, constitutional court is one pillar of separation of powers theory. In any case supremacy of constitutionalism and the rule of law would emerge if constitutional or judicial review through Constitutional Courts or Supreme Courts ensures that the constitution is followed. In addition, a strong Constitutional Court in newly democratic countries helps the state break with its authoritarian past and develops a constitutional culture in respective countries. Many of these courts have become significant, influential, well recognized, even powerful-actors. Gibson and Cadeira [8] emphasize South African Constitutional Court as defender of democracy in South Africa while Schwartz [9] concludes that the Constitutional Court in new democracies in East Europe such as Hungary and Poland as have been quite influential. Despite one view that judicial review would be in subject to strong western influence and that it would be difficult to fit with Asia historical image of authoritarian regime, the emergence of constitutional and judicial review has been well recognized and documented by constitutional law scholar in this region [10]. While Japan has maintained the successful image of constitutionalism in Asia, new breed of constitutional court in Thailand and Indonesia after 1997 turbulent political situation give other possible prospect for future legal reform and constitutionalism in the region [11]. Upon issues of liberalism under the name of free market, constitutionalism and the old debate of state control limitation, newly established constitutional court might mediate and find way to resolve the conflict and put fundamental legal basis for future conflict. It can be argued that the Indonesian Constitutional Court hailed as the guardian of constitution may set the limitation upon the old debate of state control vide article 33 of 1945 Indonesian Constitution. For this purpose of assessing the adjudicative function of the Indonesian constitutional court, this study will focus on the practice of constitutional interpretation, while identifying both the institutional characteristics and the socio-legal cultural conditions enabling such function. Within the issue of constitutional interpretation, this paper argue that the judicial reform initiated by the international donors such as IMF and World Bank clash with the people idea of economic sphere established in the 1945 Constitution, the judgment by the constitutional court shall confirm the issue. WESTERN VERSUS ASIAN PERSPECTIVE The basic outlines of neoliberal development policy since the establishment of Washington Consensus are now well known. Within economics, the lead passed from macroeconomic strategies to microeconomics. An economy was now imagined as a “market” in which individual economic actors transact one with another, responding to price signals and thereby allocating resources to their most productive use. Government is there less to manage the economy than to support market. This theoretical insight was understood to have quiet direct implication for policymakers. The basic idea was economic policy should enable rather than impede, market transaction. Government should do what is necessary to support a market pricing mechanism and avoid doing anything that would distort market prices [12]. At the National Level, the neoliberal policy agenda therefore began by dismantling the modest interventionist regimes that had been developed to pursue import substitution industrialization. Governments were encouraged to build down price distorting policies left over from their modest interventionist past and remove impediment to the penetration of national markets by the global economic forces. At the same time, government should encourage the emergence of private actors through privatization, promoting corporate law reform, strengthening the private banking sector, establishing more open and efficient financial market. The goal was to eliminate discretionary public administration and management of economic assets [12] or in David K Linnan word, the Washington Consensus de-emphasises state involvement in the economy which apparently disregard public law views of the state [13]. The 1997 Asian crisis was the gate for IMF and World Bank to give neoliberal reform prescriptions through conditionalities of restructuring of the corporate and financial sectors. As of 2004, The World Bank alone had sponsored as many as 600 projects of legal and judicial reform in over 100 countries [14]. During the engagement with host country such as Indonesia, model laws were positively promoted by the IMF/World Bank in parallel with the conditionalities on such major economic law areas as insolvency law, secured transaction, competition law and corporate governance together with the model law which support for the privatization. The model laws notably in the area of privatization and financial sectors were the case law discussed in this paper covering the Electricity Law, Water Law, Oil and Gas Law, and Investment Law. By Asian perspective, government involvement in the economic sphere and people welfare has been considered as the value of typical community people of Asian. Put some example of China, Korea, Singapore or even Indonesia itself. In case of Indonesia, the continental concept of rechtstaat and welfare state, meanwhile, emphasized the role of state in governing the state and community matters, however International Donor largely ignored this typical Asian Perspective. It shall be noted that China achieved highly economic growth without resorting much to International donor prescriptions, specifically upon the big bang privatization [15]. World Bank stated that the reform should come from within the country and reMembangun dari Daerah Its about Rudy thoughts and experiences on local governance INDONESIAN CONSTITUTIONAL COURT INTERPRETATION UPON STATE CONTROL: ASIAN VERSUS WESTERN IDEA INDONESIAN CONSTITUTIONAL COURT INTERPRETATION UPON STATE CONTROL: ASIAN VERSUS WESTERN IDEA Formulation Article 33 of Indonesia 1945 Constitution was mainly influenced by the rejection of individualism as the symbol of capitalism and colonialism. It used to be associated with the authoritarian control of economic sphere. The problem remain is the limitation of state control set by constitution upon economic spheres. In the same time, model laws prescriptions from International Donor such as IMF and World Bank has largely support privatization in many areas of economic spheres under the name of legal and judicial reform. This paper is trying to answer this old debated issue through the cases review of Indonesian Constitutional Court judgments relating with the economic rights vide article 33 of Indonesia 1945 Constitution while in the same time giving recommendation upon the issue of legal and judicial assistance from International donors. Keywords: constitutional rights, environment, social science, interpretation, law and development. INTRODUCTION Indonesia inherited a complex legal system whose main component parts were western law, adat law, and Islamic law. In the same time, the legal system in Indonesia has been marked by the long struggle to construct a system based on the pattern of the family or community as set forth by the Constitution. This complex legal system basically features the special characteristic of Indonesia community and made the birth of unification supporters and legal pluralism supporters. Amidst the desire to construct a strong unitary state, Seoepomo who was the great supporter of legal pluralism, however, was able to provide the basic provision in Indonesia 1945 Constitution to protect legal pluralism [1]. It may be said that Indonesia 1945 Constitution greatly accommodated the law from the top and law from below but did not give the way to negotiate between the two. However, attachment to the traditional communal life conflicts with modernization and industrialization. Since that time, the legal pluralism versus unification became great national issue. This never-ending contest between legal pluralism and unification is not only happen in Indonesia but also happen across the world in Asia [2], Africa [3], and Latin America [4]. Within the issue, old debated upon the interpretation of limitation of state control has not met the conclusion. Asian Crisis 1997 witnessed the fall of New Order and the beginning of democratization in Indonesia followed by the historic amendment of Indonesia 1945 Constitution. This financial crisis marked the visible process of legal and judicial reform in Asia especially in South East Asia, these reforms mostly promoted by international agencies such as International Monetary Fund, Asian Development Bank, European Bank for Reconstruction and Development, and The World Bank. Most of these multilateral banks and donor agencies are involved in programs that fall within the broad notion of legal and judicial reform. It is widely known that the legal and judicial reform led by international agencies gives implication to the policy choice and legal design in the respective countries. Asia and especially Indonesia worked closely with so many international donors in its development framework upon the legal and judicial reform. Within this so many international donors involvement, the engagement with legal transplantation pressure is evident. During that time, model laws mostly of American model were promoted and introduced in Asian countries backed by the academic justification under the name of legal transplantation and governance, several of those laws has become performance requirement for funding aid from those donors. Though influential critics have shared a negative conclusion that the post-crisis legal reforms were unsuccessful, they often have not conducted careful analyses into the substance of legal policies contained in conditionality and model laws. Most observers have questioned the viability of the compulsory mode, rather than the substance, of the model laws being “transplanted” from developed countries to developing and/or transition countries. On the other hand, their counterparts from the law and economics schools have dealt with the substance of model laws, but they often lack rigorous comparative legal analyses. Various explanatory frameworks have been articulated by the law and economics school, including contingency theory, legal origins, new comparative economic systems, but the weak logic behind these frameworks reveals the political desire to justify model laws reflecting U.S. standards of deregulation or “new liberalism.” In case of Indonesia legal and judicial reform assistance, the problem remain was the provision of state control in 1945 constitution before several judgment by constitutional court had not been addressed giving way for model laws supporting privatization signed by House of Representatives. Vacuum of legal interpretation upon the state control gave no direction of the legal and judicial reform direction giving a harsh way of such reform without considering the nation public law views. In the other side, under the rule of law missionaries, constitutionalism has been spread around the globe aided by many international donors. Since 1990s, most Eastern European societies have taken significant steps to reform their legal system including rewritten constitutions even though the results are still questioned. Most Latin American governments have acknowledged the need for rule-of-law reform and are taking steps toward it, or at least proclaiming that they will. In Asia, constitutionalism has been a part of formalistic rule of law reform package primarily to support legal reform related to commercial affairs [5]. At the same time, the rise of constitutionalism is followed by the gradual emergence and expansion of new constitutional court in the world political system as the part of institutionalization of constitutional structure [6]; these new judicial powers have been responsible for translating the constitutional provisions into practical guidelines to be used in daily public life and have been famously recognized as guardian of constitution. Cappeletti [7] in this regard concludes that judicial review or constitutional review is the method for effectuating the positivization of higher values expressed by constitutions. In addition, constitutional court is one pillar of separation of powers theory. In any case supremacy of constitutionalism and the rule of law would emerge if constitutional or judicial review through Constitutional Courts or Supreme Courts ensures that the constitution is followed. In addition, a strong Constitutional Court in newly democratic countries helps the state break with its authoritarian past and develops a constitutional culture in respective countries. Many of these courts have become significant, influential, well recognized, even powerful-actors. Gibson and Cadeira [8] emphasize South African Constitutional Court as defender of democracy in South Africa while Schwartz [9] concludes that the Constitutional Court in new democracies in East Europe such as Hungary and Poland as have been quite influential. Despite one view that judicial review would be in subject to strong western influence and that it would be difficult to fit with Asia historical image of authoritarian regime, the emergence of constitutional and judicial review has been well recognized and documented by constitutional law scholar in this region [10]. While Japan has maintained the successful image of constitutionalism in Asia, new breed of constitutional court in Thailand and Indonesia after 1997 turbulent political situation give other possible prospect for future legal reform and constitutionalism in the region [11]. Upon issues of liberalism under the name of free market, constitutionalism and the old debate of state control limitation, newly established constitutional court might mediate and find way to resolve the conflict and put fundamental legal basis for future conflict. It can be argued that the Indonesian Constitutional Court hailed as the guardian of constitution may set the limitation upon the old debate of state control vide article 33 of 1945 Indonesian Constitution. For this purpose of assessing the adjudicative function of the Indonesian constitutional court, this study will focus on the practice of constitutional interpretation, while identifying both the institutional characteristics and the socio-legal cultural conditions enabling such function. Within the issue of constitutional interpretation, this paper argue that the judicial reform initiated by the international donors such as IMF and World Bank clash with the people idea of economic sphere established in the 1945 Constitution, the judgment by the constitutional court shall confirm the issue. WESTERN VERSUS ASIAN PERSPECTIVE The basic outlines of neoliberal development policy since the establishment of Washington Consensus are now well known. Within economics, the lead passed from macroeconomic strategies to microeconomics. An economy was now imagined as a “market” in which individual economic actors transact one with another, responding to price signals and thereby allocating resources to their most productive use. Government is there less to manage the economy than to support market. This theoretical insight was understood to have quiet direct implication for policymakers. The basic idea was economic policy should enable rather than impede, market transaction. Government should do what is necessary to support a market pricing mechanism and avoid doing anything that would distort market prices [12]. At the National Level, the neoliberal policy agenda therefore began by dismantling the modest interventionist regimes that had been developed to pursue import substitution industrialization. Governments were encouraged to build down price distorting policies left over from their modest interventionist past and remove impediment to the penetration of national markets by the global economic forces. At the same time, government should encourage the emergence of private actors through privatization, promoting corporate law reform, strengthening the private banking sector, establishing more open and efficient financial market. The goal was to eliminate discretionary public administration and management of economic assets [12] or in David K Linnan word, the Washington Consensus de-emphasises state involvement in the economy which apparently disregard public law views of the state [13]. The 1997 Asian crisis was the gate for IMF and World Bank to give neoliberal reform prescriptions through conditionalities of restructuring of the corporate and financial sectors. As of 2004, The World Bank alone had sponsored as many as 600 projects of legal and judicial reform in over 100 countries [14]. During the engagement with host country such as Indonesia, model laws were positively promoted by the IMF/World Bank in parallel with the conditionalities on such major economic law areas as insolvency law, secured transaction, competition law and corporate governance together with the model law which support for the privatization. The model laws notably in the area of privatization and financial sectors were the case law discussed in this paper covering the Electricity Law, Water Law, Oil and Gas Law, and Investment Law. By Asian perspective, government involvement in the economic sphere and people welfare has been considered as the value of typical community people of Asian. Put some example of China, Korea, Singapore or even Indonesia itself. In case of Indonesia, the continental concept of rechtstaat and welfare state, meanwhile, emphasized the role of state in governing the state and community matters, however International Donor largely ignored this typical Asian Perspective. It shall be noted that China achieved highly economic growth without resorting much to International donor prescriptions, specifically upon the big bang privatization [15]. World Bank stated that the reform should come from within the country and re