Power and Law in The Context of Separation of Powers: A Qualitative Study of The Relationship Between The Executive and The Judiciary
Dede Amirudin1*, Christian2,
Samsudin Nurseha3, Abdul Musyfiq Al-aytami4
Universitas Bhayangkara Jaya,
Jakarta, DKI Jakarta, Indonesia1,2,3,4
E-mail: [email protected]1*,
[email protected]2, [email protected]3,
[email protected]4
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Keywords |
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ABSTRACT |
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Power,
Law, Separation of Powers, Executive, Judicial. |
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This study aims to delve deeper into the relationship between the
executive and the judiciary in the context of separation of powers. Through a
qualitative study approach, this study will analyze the dynamics of power and
the role of law in influencing the interaction between the two branches of
government. The research will involve in-depth interviews with legal
practitioners, judges, executive officers, and other relevant stakeholders to
gather in-depth qualitative data. Data analysis will be carried out by taking
into account theoretical perspectives and concepts related to separation of
powers, political power, judicial independence, and the role of law in the
government system. The results of this study conclude that a better
understanding of the dynamics of power and law in the relationship between
the executive and the judiciary provides valuable insights for policymakers
and law enforcers in strengthening the separation of powers and improving
equitable governance systems. |
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INTRODUCTION
Separation of powers is an important principle in democratic
systems of government that aims to prevent abuse of power and maintain a
balance between the branches of government. In this context, the relationship
between the executive branch and the judiciary plays a crucial role in ensuring
that the legal system operates fairly and effectively
This study aims to delve deeper into the relationship
between the executive and the judiciary in the context of separation of powers.
Through a qualitative study approach, this study will analyze the dynamics of
power and the role of law in influencing the interaction between the two
branches of government.
In many countries, the executive has the power to make
political decisions and carry out public policy, while the judiciary is in
charge of exercising the functions of the courts and interpreting laws
Previous studies have highlighted issues related to
executive and judicial relations, including political interference in the
judicial system, power imbalances, and judicial independence. However, there is
still much to understand in the finer dynamics between these two branches,
especially in the context of power and the role of law
To address this gap, the research
will conduct in-depth interviews with legal practitioners, judges, executive
officers, and other pertinent stakeholders to amass qualitative data. The
ensuing data analysis will integrate theoretical perspectives encompassing
separation of powers, political power, judicial independence, and the role of
law within the governmental system
This research aspires to make a
substantive contribution to comprehending the intricate dynamics of power and
law within the executive-judiciary relationship. The anticipated findings hold
the potential to offer valuable insights for policymakers, law enforcement, and
academics committed to fortifying the separation of powers principle and
enhancing equitable governance systems.
METHODS
The analysis is deficient in examining recent or
specific cases that illustrate the intricate dynamics between the executive and
judiciary, resulting in gaps in understanding the practical implications of the
presented theoretical framework. Furthermore, discussions concerning the
symbiotic relationship between law and power could benefit from incorporating
real examples or case studies to enhance clarity and application.
To address these shortcomings, the study employs
qualitative methodologies, utilizing a literature review framework
RESULTS
Dynamics
of the Relationship Between the Executive and the Judiciary
After the amendment of the 1945
Constitution, the analysis fails to delve into recent or specific cases that
illustrate the intricate dynamics between the executive and judiciary. This
omission results in gaps within the practical implications of the theoretical
framework presented. To enhance clarity and application, discussions regarding
the symbiotic relationship between law and power should incorporate real-life
examples or case studies. The key principles governing the interactions among
state institutions include the Rule of the Constitution, the Presidential
System, and the principles of Separation of Powers and Checks and Balances
Constitutional Supremacy
One of the key modifications in the 1945
Constitution involves the amendment of Article 1, paragraph (2), which declares
that sovereignty resides with the people and is executed following the
provisions of the 1945 Constitution. This alteration signifies a shift,
indicating that the People's Consultative Assembly (MPR) no longer exclusively
holds and exercises people's sovereignty; instead, it is now implemented by the
regulations outlined in the fundamental law. Consequently, the People's
Consultative Assembly (MPR) is no longer positioned as the foremost state
institution above other high-ranking state bodies. Article 1, paragraph (2) of
the amended 1945 Constitution, establishes the 1945 Constitution as the supreme
legal foundation for the exercise of people's sovereignty. This implies that
the exercise of people's sovereignty is distributed among all constitutional
organs, each performing its respective functions and authorities following the
provisions of the 1945 Constitution. Unlike the previous arrangement, where
sovereignty was entirely vested in the People's Consultative Assembly (MPR)
before being delegated to high state institutions, the amended Article 1,
paragraph (2) maintains that sovereignty remains with the people and is
functionally distributed directly to constitutional organs
Presidential System
Before the amendment of the 1945
Constitution, the adopted government system was not purely presidential. While
the connection between the MPR acting as a parliament and an equal President
(neben), along with a fixed presidential term, reflects aspects of a
presidential system, the presence of the MPR, which elects, mandates, and has
the authority to dismiss the president, indicates characteristics of a
parliamentary system. The President is the MPR mandataris and as a consequence
the President is responsible to the MPR and the MPR can dismiss the President. The next change to perfect the
presidential system was to balance the legitimacy and standing between the
executive and legislative institutions, in this case mainly between the DPR and
the president. This is done by regulating the mechanism for electing the
president and vice president carried out directly by the people and the
mechanism for dismissal during the term of office as stipulated in articles 6,
6A, 7, 7A, and 8 of the 1945 Constitution. Before the amendment of the 1945 Constitution, the
institutional framework in place was not based on the separation of powers but
was frequently described as the distribution of power
The President not only wields the
highest executive authority but also shares legislative power with the House of
Representatives. The issue of judicial power in the original 1945 Constitution
was vested in the Supreme Court and other judicial bodies as per the law.
However, amendments to the Constitution, particularly in Article 5 paragraph
(1) and Article 20 paragraph (1), transferred the authority to formulate laws
from the president to the DPR. Consequently, the primary legislative
institution became the DPR, while the president assumed the role of the
executive. Although the president's approval is necessary in the law-making
process, their function is that of a co-legislator, akin to the DPD for
specific legal matters, rather than being the principal legislator. Judicial
power, as stipulated in Article 24 paragraph (2) of the 1945 Constitution, is
exercised by the Supreme Court and its subordinate judicial bodies, as well as
the Constitutional Court
The interaction among the executive power
wielded by the president, legislative power held by the DPR (and, in specific
instances, the DPD as a co-legislator), and judicial power executed by the
Supreme Court and the Constitutional Court represents the embodiment of the
checks and balances system. This system aims to maintain equilibrium in the
distribution of powers, preventing the abuse of authority or gridlock between
institutions. Consequently, there is always a role for another institution in
the exercise of power. In the execution of legislative authority, for instance,
although the DPR is designated as the legislative power holder, collaboration
with co-legislators, namely the president and DPD, is essential.
Even a law provision that has received
approval from the DPR and the president, subsequently enacted, can be deemed
non-binding by the Constitutional Court if it contradicts the stipulations of
the 1945 Constitution. Conversely, the president, in exercising governmental
authority, is subject to oversight from the DPR. This supervision extends
beyond post-activity scrutiny, encompassing the stages of development planning
and budget allocation. The DPR holds a robust position in this context, given
its special budgetary role in addition to its legislative and supervisory
functions, as outlined in Article 20A of the 1945 Constitution.
In this study, the results of the analysis show that
the relationship between the executive branch and the
judiciary in the context of separation of powers is very complex and
influenced by various factors. It was found that there are several forms of
interaction between these two branches, including cooperation, conflict, and
interdependence. A harmonious relationship between these two branches is
essential to maintain a balance of power and a smooth decision-making process.
Political
Interference in
the Justice System
The analysis also revealed political interference in
the judicial system. Sometimes, the executive
seeks to influence court decisions to support a particular political interest
or agenda. This raises concerns about the independence of the judiciary and
could undermine the principle of separation of powers. The results of this
study highlight the importance of strengthening the oversight mechanism of
judicial independence to prevent political interference that harms the judicial
system.
A modern legal system must be able to form good
laws, which reflect a sense of justice for all parties and are by the
conditions of society. Laws are made according to predetermined procedures, and
must also be understood or understood by society as a whole. The embodiment of
the rule of law in the constitution outlines that judicial power is an
independent power. This is stipulated in Article 24 Paragraph (1) of the 1945
Constitution which affirms that "judicial power is an independent power to
administer justice to uphold law and justice". Thus, the independence of
judicial power is the main prerequisite for the establishment of law and
justice.
The post-1945 Amendment of the Constitution of the
Republic of Indonesia maintains the independence of judicial power within the
state's power structure, ensuring that it operates without interference from
other branches. Judicial authority is carried out through various courts,
including the Supreme Court and lower judicial bodies such as general,
religious, military, administrative, and Constitutional Courts
Interference has the true meaning of a 3rd party who
participates in the dispute of 2 (two) other parties. The word is always attached or can be said to be the
language of the law of law. The main problem is that the word has legal
implications for prolonged polemics, this study conveys implications in
constitutional practice and judicial practice. Changes to the law as well as
its discussion by the government and the DPR are more focused on the practice
of implementing the government system. The term contempt of court can be found
in the general explanation of point four of the fourth paragraph of Law Number
14 of 1985 concerning the Supreme Court which states "that further to be
able to better ensure the creation of the best atmosphere for the administration
of justice to uphold law and justice that regulates the enforcement of actions,
behaviors, attitudes and/or speech
that can degrade and undermine authority,
dignity, and honor of the judiciary known as the contempt of
court".
As a justification reason, in constitutional
practice vigorously and sporadically make several changes so that the judicial
power is free from interference from other powers. The political will of the
government, parliament, and society
is always related to the concept of the rule of law which is aspired so that
judicial power is not interfered with by executive power, the legislature
changes and establishes legislation in the judicial field where the analysis
knife uses the theory of separation of powers where freedom and rights of
citizens are protected. The meaning of freedom about the theory of separation
of powers according to Aidul Fitriciada Azhari is "The purpose of
separation of power (separation of power / séparation des pouvoirs /
scheidingvan machten) comes from the thought of Charles de Secondat, Baronde
Montesquieu in his work De l'esprit des lois.
A
Study of the Relationship of Law and Power
Law and power are two different things but influence
each other. Law is a system of regulations that regulate human life and if
violated, sanctions will be given for those who violate it. While power is the
ability of a person or a group to influence the behavior of another person or
group, so that the party acts according to what they want
Society creates rules of law whose compliance at the
last level is not entirely left to the free will of individual citizens but
rather applied and enforced by public authorities whose authority, and its
presence are accepted by society. To find out
1.
Juridically,
the rule of law is established either through adherence to a higher rule (as
proposed by Hans Kelsen), following a predetermined structure, or demonstrating
the correlation between a condition and its consequences (J.H.A. Logemann).
2.
Sociologically,
the law becomes applicable when it is effectively enforced, indicating that it
can be imposed by the governing authority, even if not embraced by the
community's citizens. Alternatively, the rule applies when it is accepted and
acknowledged by the community.
3. Philosophically, the rule of
law is rooted in the ideals of
law as the utmost positive value.
The implementation of law in society requires power
because without power the law is only
recommendable. But power also requires laws to define its boundaries
Power holders have a very important role, where the
realization of justice that is aspired to, among others, will depend on how
power holders use their power. Therefore, besides the need for law and public
legal awareness as a barrier for power holders, another thing that is no less
important is honesty and high morals for the interests of society. Because no
matter how well the law is held to limit the behavior of the ruler, but if the
mentality and morals of the ruler are not good, in the end, the law will be trampled on. To find out the close
relationship between law and power, it can be seen in two ways, namely:
1.
Examining the concept of sanctions.
The existence of
behavior that does not comply with the rules of law causes sanctions to be
needed for the enforcement of these legal rules because sanctions are a form of
violence, their use requires juridical legitimacy (legal justification) to make
it legitimate violence.
2.
Examining the concept of constitutional enforcement.
The establishment of a legal framework in a well-organized
state is dictated by the law itself, typically outlined in the country's
constitution. The implementation of the constitution, which includes ensuring
proper procedures in law formation, necessitates the use of force. This implies
that the law requires protection to facilitate its enforcement, specifically
through the exertion of power. While law is synonymous with power, an alternate
dynamic exists in the relationship between law and power. In essence, law and
power are distinct entities, yet their connection is intimate and can manifest
as either a dominant or reciprocal relationship. In this context, three forms
illustrate the manifestation of the relationship between law and power, namely:
a.
The law is subject to power.
In
essence, power not only dominates the law but frequently transforms it into a
means of exercising authority. In simpler terms, power holds superiority over
the law. As a result, the experts' definition of law implies that power
exercises control over the legal system.
b.
Power is subject to law.
In other words, power operates within the boundaries
set by laws, and these laws define the very existence of power. Within legal
philosophy, the idea of subordinating power to the law is a fundamental
principle in constitutional governance. This principle is articulated through
the concept of the rule of law, signifying that the law stands as the highest
authority governing the life of society, nation, and state. The notion of law
as the supreme rule is encapsulated in Hans Kelsen's idea of the basic norm of
the state, or grund norm.
Moreover, the rule of law also implies that the
exercise of power in managing constitutional affairs and the machinery of
government must adhere to legal principles. In the absence of a legal
foundation, power lacks legitimacy.
c.
There is a reciprocal (symbiotic) relationship
between law and power.
In
this scenario, the connection between law and power is not characterized by
dominance, where one prevails or serves as the determining factor over the
other. Instead, the relationship is characterized as influential and
functional, signifying that it is viewed in terms of specific functions that
can be mutually performed. Between law and power, there exists a reciprocal
relationship where each influences the other. If the law applies
without any power in it, then the law becomes ineffective in carrying out its
function of regulating society because the community will not obey the law
because there is no authorized party to enforce the law so it can cause chaos
in the conditions that exist in society. The existence of law without any power
behind it makes the law barren, while the power regulated by law is for the
benefit of society so that people who are objects of power do not become
victims of power
The
Role of Law in Strengthening the Separation of Powers
The discussion also highlighted the importance of
the role of law in the context of the separation of powers. Law has a critical function in
ensuring that the limits of power are respected and appropriately enforced.
Fair and indiscriminate law enforcement is essential in ensuring judicial
independence and maintaining a balance of power between the executive and
judiciary. Therefore, strengthening legal
institutions and the judicial system is a priority to strengthen the
separation of powers.
CONCLUSION
This
research underscores the intricacies inherent in the relationship between the
executive and judicial branches within the framework of the separation of
powers. The dynamics between these branches involve a nuanced interplay of
cooperation and conflict, yet the study unveils concerning instances of
political interference that pose a threat to judicial independence.
Furthermore, imbalances of power loom as potential challenges, jeopardizing the
fundamental principle of the separation of powers. The pivotal role of law in
this context cannot be overstated, as it serves as a crucial mechanism for
restraining power and preserving equilibrium between the executive and the
judiciary. The enforcement of fair and impartial laws emerges as a linchpin for
fortifying the separation of powers. The study's policy recommendations
advocate for the fortification of judicial independence through the
establishment of a transparent and objective judge selection system.
Additionally, the imperative for vigilant monitoring of political interference
in the judicial system is emphasized. In conclusion, a comprehensive
comprehension of power dynamics and the role of law in the executive-judiciary
relationship provides invaluable insights for policymakers and law enforcement,
fostering the enhancement of the separation of powers and the advancement of
just and equitable systems of governance.
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Copyright
holder: Dede Amirudin, Christian, Samsudin Nurseha, Abdul Musyfiq
Al-aytami (2024) |
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First
publication right: International
Journal of Social Service and Research (IJSSR) |
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