Repositioning the Role of the Constitutional Court

as Positive Legislature in Indonesia

Fitria Esfandiari

and Moh. Fadli

Faculty of Law, University of Muhammadiyah Malang

Faculty of Law, University of Brawijaya Malang

Keyword Reposition, Constitutional Court, Negative Legislator, Positive Legislator

Abstract The position of the Constitutional Court (MK) is as negative legislature. But in a certain

decision the Constitutional Court acts as a positive legislature. Repositioning can be

interpreted as a placement back to its original position; rearrangement of existing positions;

placement to a different or new position The significance of this article is to give a solution to

this issue so that the authority of the Constitutional Court could return to its original position,

as outlined in the 1945 Constitution of the Republic of Indonesia. The ruling of this research

is based on legal, philosophical and sociological considerations which can’t be separated from

legal interpretation. The new norms born of the Constitutional Court decision which is

positive legislature directly has legal implications for the wider community. The is

equivalent to the Act because it is final and binding.

1 INTRODUCTION

Standards in improving the quality of

democracy are used for outside political evaluations

concerning the minimum understanding of

democracy. what is the quality of democracy? the

term "systemic turn" contained in the literature on

deliberative democracy is now a promising thing.

There are many special theories that are used for

questions about deliberative systems because little is

offered about the criteria needed by the system to be

deliberative democratic. The purpose of this paper is

to contribute to the systemic approach by

establishing some desiderates that satisfactory

accounts of the deliberation system must consider

when developing these criteria. This is done by

analyzing the main properties of a deliberative

system in relation to three essential aspects of

democracy: representation, equality, and inclusion.

Among other things, it is argued that when

theorizing criteria for what a deliberative system

requires, a systemic account should carefully

distinguish between political and epistemic

representation, between political and epistemic

equality, and between political and epistemic

inclusion.

This article first reconstructs and assesses

current conceptualizations of the quality of

democracy. Thereafter, it reconceptualises the

quality of democracy by equating it with democracy

pure and simple, positing that democracy is a

synthesis of political freedom and political equality,

and spelling out the implications of this substantive

assumption. The proposal is to broaden the concept

of democracy to address two additional spheres:

government decision-making — political institutions

are democratic inasmuch as a majority of citizens

can change the status quo — and the social

environment of politics — the social context cannot

turn the principles of political freedom and equality

into mere formalities. Alternative specifications of

democratic standards are considered and reasons for

discarding them are provided.

Positive legislatures (Martitah, 2013) are not as

popular as negative legislatures. The authority of the

Constitutional Court should not be a positive

legislature but a negative legislature. According to

Hans Kelsen in the book General Theory of Law and

State, affirming ...” A court which is competent to

abolish laws individually or generally function as a

negative legislator (Kelsen, 1961). For a constitution

to have meaning, the constitution must be functional,

in the sense that the constitution is effectively able to

1104

Esfandiari, F. and Fadli, M.

Repositioning the Role of the Constitutional Court as Positive Legislature in Indonesia.

DOI: 10.5220/0009923411041111

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 1104-1111

ISBN: 978-989-758-458-9

fulfill its functions, so that there is no gap between

what is written in the Constitution and the reality of

it, how the constitutional is used in everyday life of

the citizens of Indonesia (“Peranan Mahkamah

Konstitusi Dalam Membangun Kesadaran

Berkonstitusi, Konstitusionalisme Demokrasi,”

2010). In this case the Constitution of the Republic

of Indonesia, here in after abbreviated to the 1945

Constitution.

In parliamentary systems the legislature is

supposed to hold the executive accountable. And yet

there has long been concern that this legislative

supervision is ineective because of the political

bond between the government of the day and the

majority in Parliament. There are indications that

courts have taken on a compensatory role, by acting

as substitutes for this failing legislative oversight

(Zwart, 2010).

Sovereignty of a country is defined as the highest

authority within the country to regulate its function.

The government has the right to regulate the whole

interests of its people, through various state

institutions and other devices, without interference

from other countries. Sovereignty of a country is

used to regulate and run state organizations in

accordance with the laws and regulations of the

country, and the people must obey and submit to the

government outlines.

An important agenda of reformation in Indonesia

is the change of the 1945 Constitution of the

Republic of Indonesia (abbreviated as the 1945

Constitution) . The demands of the people that

developed in the reformation era, one of which was

a legal reform that led to the realization of the

supremacy of law under a constitutional system, that

served as an effective basic reference in the process

of carrying out the state and people's daily lives. In

an effort to realize an effective legal system, the

restructuring of legal institutions and supported by

the quality of human resources and the culture and

legal awareness of the community with the reform of

legal materials that are structured harmoniously and

is continuously updated according to the needs of

the community. It all started with the agenda of the

three reforms in 1998, namely institutional reform,

instrumental reform and cultural reform. There are

at least three matters of the reformation that is

related to the discourse to improve our law

enforcement through the reform of the judiciary,

especially the judicial power.

In every conversation about state institutions,

there are two key elements that are interrelated,

namely organs and functie. An organ can be defined

as a form, while a functie is its contents; the organ is

the status of the form (English: form, German:

vorm) while the fund is the movement of the

container according to the purpose of its formation.

In the 1945 Constitution of the Republic of

Indonesia, the organs in question, there are those

whose names are explicitly mentioned, and there are

also those which are mentioned explicitly only of

their functions. There are also institutions that are

mentioned are capped good upon its name or

function and authority will be governed by lower

regulations. If it is related to the above, then it can

be stated that in the 1945 Constitution, there were no

less than 28 institutional legal subjects or state

constitutional and state administrative subjects

which were referred to in the 1945 Constitution.

The subjects of institutional law can be referred

to as state organs in a broad sense. Textually, in

relation to the President and Vice President, which

are regulated in Chapter III of the UUD, starting

from Article 4 paragraph (1) in the regulation,

concerning the authority of the state government,

which contains 17 articles; 3) The Vice President

whose existence is also regulated in Article 4 is in

paragraph (2) of the UUD. Article 4 paragraph (2) of

the 1945 Constitution affirms, "In carrying out its

obligations, the President is assisted by one Vice

President"

Related to the regulation of reasons and

procedures for the dismissal of the President within

a term of office. Theoretically, this is a logical

consequence of the political will to reinforce the

Presidential administration system which is one of

the basic agreements of the Ad Hoc I Committee of

the MPR. If looking further at the regulation

regarding the dismissal of the President in his term

of office, it is also a consequence of the adherence to

the doctrine of separation of powers with the checks

and balance system mechanism in the Amendment

to the UUD 1945.

In the presidential system, the President can still

be dismissed in the middle of the road through a

mechanism known as "impeachment". However, in

this system, limited impeachment can only be done

for reasons of violation of the law (criminal)

involving personal responsibility (individual

responsibility). Beyond legal reasons, the process of

dismissal claims cannot be carried out as in the

parliamentary system through a "vote of cencure"

mechanism. Therefore, there is no need for concern

if the President resigns and the Vice President

appears as a substitute even though he is from a

different party.

The history of state administration in Indonesia

noted that there were four presidential changes

Repositioning the Role of the Constitutional Court as Positive Legislature in Indonesia

1105

before their term ended. First, President Soekarno

was dismissed through MPRS Decree No

XXXIII/MPRS/1967 concerning Revocation of

President Soekarno's State Government Power,

Second, President Soeharto stopped after the

MPR/DPR Chair announced the MPR's request that

Soeharto resign following the Student demonstration

and other elements of society on May 21, 1998;

Third, President BJ. Habibie stopped after the MPR

was held accountable at the 1999 MPR Special

Session, and Fourth, President KH. Abdurrahman

Wahid was dismissed by the MPR through the MPR

Decree Number II/MPR/2001 concerning the

responsibility of the President of the Republic of

Indonesia KH. Abdurrahman Wahid, because he was

absent and refused to give responsibility in the

Special Session of the People's Consultative

Assembly in 2011, and was considered to be

involved in the case of the Bulogate funds.

If of the case of the dismissal of the President is

further seen, it is known that during his term before

the Amendment to the 1945 Constitution, in

particular that the dismissal of Soekarno and

Abdurrahman Wahid was based solely on political

considerations rather than other reasons. This is due

to the fact that the judiciary is not involved in

judging legally the truth of the acts alleged to the

two Presidents.

In the context of the rule of law, this clearly

contradicts the notion that any dismissal of the

President must go through a constitutional juridical

system with an independent and impartial judiciary.

The next problem is related to the reasons and

procedures for the dismissal of the President of

Indonesia within the term of office, in the Third

Amendment to the 1945 Constitution regulated in

several articles, namely Article 3 paragraph (3),

Article 7A and 7B, Article 8 paragraph (1), (2), (3)

and Article 24 C paragraph (1) and (2).

In the concept of rechtsstaat, it was extracted

from the basic ideas of Immanuel Kant and Frederic

Julius Stahl and developed in continental European

countries. The concept of rechtsstaat Immanuel Kant

came up with the concept of a formal legal state or

commonly called nachtwakersstaat. In the sense that

the state guarantees individual freedom as a member

of society, the state is not allowed to interfere in the

affairs of its citizens, so this concept is then widely

known as the concept of a liberal state. The state is

only there to protect its citizens. Unlike Julius Stahl,

as quoted by Miriam Budiardjo, the intended

rechtsstaat has elements namely: (a). recognizing the

rights of citizens; (b). the separation or division of

state power to guarantee human rights commonly

known as Trias Politica (c). government based on

regulations (wetmatigheid van bestuur) and (d) the

existence of administrative courts in disputes.

Philipus M. Hadjon quoted D.H.M. Meuwissen,

argued that constitution is an element that must exist

in the concept of a rule of law because the

constitution guarantees the protection of the basic

rights of citizens. This is because the existence of

the Constitution or constitution in question should

contain written provisions regarding the relationship

between the authorities and the people. Another

thing that is required is the division of state power

which includes the power of making laws in the

hands of the parliament, free judicial power and

which only does not deal with disputes between

individuals of the people but also between the

authorities and the people and government who base

their actions on the law invite (wetmatig bestuur).

Finally, he acknowledged and protected the right of

freedom of the people (vrijheidsrechten van de

burger).

Before further discussion, the context of office in

Indonesia is a fixed work environment that contains

certain functions which overall reflect the goals and

work procedures of an organization. In order for the

office and functions to become concrete and to move

towards the goals and objectives, there must be

office holders, namely officials, that is, individuals

who sit or are seated in a position with the authority

to carry out certain functions

2 METHOD

The ruling of this research is based on legal,

philosophical and sociological considerations which

can’t be separated from legal interpretation.

3 FINDING AND DISCUSSION

The sovereignty of the people in the hands of the

people, had been done entirely by the Consultative

Assembly People, with the change of the three

sovereignty of the people, are then implemented

according to the Constitution (UUD) (Sekretariat

Jenderal MPR RI, 2003). In order to understand the

position of the Constitutional Court and to reposition

it more appropriately within our constitutional

system (Mahfud MD, 2009), it is necessary to

review the background of the reform of the judicial

world, in particular, the reform of the judicial power,

which culminated in 1998.

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This reason a Constitutional Court cannot be a

Court that decides shallow and narrow. (The

expression belongs to Cass Sunstein). Judging in

Constitutional matters requires, not only a certain

vision about the length and strength of the

Constitution that provides the basis for the decision,

but also a strong conviction about its legitimacy.

These are the two grounds upon which a coherent

constitutional case-law can be built. Therefore, any

Constitutional Court that uses these two grounds as

the proper basis of its decisions cannot be

considered, by this motive, an “activist”, in the

pejorative sense of the expression (Amaral, 2016).

Efforts to reconsider the reform of the world of

justice, judicial power becomes important to answer

questions about the direction of the completion of

the Constitutional Court if there will be further

amendments to the 1945 Constitution. Let see the

Norwegian system of judicial review of the

constitutionality of legislative norms is the second

oldest in the world. With no explicit basis in the

Constitution of 1814 ( still in existence and hence

the second oldest still in existence in the world as

well, it grew by court practice since around 1820,

the final decisions mainly those of the Supreme

Court were systematically respected by the other

constituted powers. Immediately after the Supreme

Court judges were forced (by a 1863 statute) to vote

individually while stating their reason in public, the

first case came (1866) where the reason clearly

expose the doctrinal basis of judicial review on

which the activity of the judiciary (namely the

Supreme Court itself) were based (Smith, 2010).

Moreover, the fundamental changes were made

through the 1945 amendment which included

changes in the conception of the state of law so that

it became more open than just the conception

(rechtsstaat), became a legal state without any

mention of foreign terms such as (rechtsstaat), or the

rule of law. The change of the judicial authority

establishing two judicial powers namely the

Supreme Court (MA) and the Constitutional Court

(MK) plus a state institution, whose duties are not in

the field of judicial authority but related to the

judicial power of the Judicial Commission (KY).

Since the issuance of Law Number 12 Year

2008, which is the amendment to Law Number 32

Year 2004, the authority of the Constitutional Court

plus one is to decide the dispute on the result of

regional election (pilkada) which previously became

the competence of the Supreme Court. The transfer

of authority over the dispute of the results in this

election is a consequence of the provisions of Law

Number 22 Year 2007 on Election Organizer.

The Constitutional Court, here in after referred to

as the Constitutional Court, has the authority as

regulated in Article 24C of the 1945 Constitution

which is part of the concept of checks and balances.

This concept itself is the result of the development

of the modern idea of a system of democratic

government based on the idea of the rule of law, the

separation of powers and the protection of the

promotion of human rights (Asshiddiqie, 2006).

There are two main tasks carried through the

constitutional review, namely: a) Ensure the

functioning of the democratic system in the interplay

between the branches of legislative, executive, and

judiciary. Constitutional review is intended to

prevent the occurrence abuse of power by one

branch of power; b) Protecting every individual

citizen from abuse of citizen power that harms their

fundamental rights guaranteed by the constitution.

There are three decisions of the Constitutional

Court analyzed and can be categorized as positive

legislature. First Decision Number 46 / PUU-VIII /

2010 on the Rights and Status of Outer Child

Marriage. Second, Decision Number 102 / PUU-VII

/ 2009 on Presidential and Vice Presidential Election

(Presidential Election). Third, Decision Number

110-111-112-113 / PUU-VII / 2009 on General

Election of Members of the People's Legislative

Assembly, Regional Representatives Council, and

Regional House of Representatives. In these three

decision, the Constitutional Court does what is

referred to as a positive legislature function in its

decision. In Indonesia let see how electoral rules

affect the occurrence of legislative party switching?

It is said that electoral systems that encourage

politicians to cultivate a personal vote parties' ability

to retain members.

In such systems, compared to party-centred

systems, I expect that only parties that suffer

electoral setbacks to be more likely to witness

switching, as their candidates are less concerned

with party labels, and local supporters might follow

them to the new party, thus reducing switching

costs. The greater incentives to cultivate a personal

vote in candidate-centred electoral systems result in

politicians relying more on local supporters and less

on party label for their re-election.

The breakthrough referred to Mahfud MD,

emphasized that in carrying out its authority the

Constitutional Court has signs that must be obeyed.

Those signs as presented by Mahfud MD in the

event of fit and proper test Prospective

Constitutional Candidate in the House of

Representatives consists of 10 kinds, as follows: (1)

In conducting the examination, the Constitutional

Repositioning the Role of the Constitutional Court as Positive Legislature in Indonesia

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Court shall not make a decision that is regulatory;

(2) In conducting the test, the Constitutional Court

shall not make Ultra Petita; (3) In making a decision,

the Constitutional Court shall not make the law as

the basis for the cancellation of other laws; (4) In

making a decision, the Constitutional Court shall not

interfere with the matter delegated by the

Constitution to the legislature to regulate it by law in

accordance with its own political choice; (5) In

making a decision, the Constitutional Court may not

base on theories that are not expressly embraced by

the Constitution; (6) In conducting the examination,

the Constitutional Court shall not violate the

principle of nemo judex in causa sua, namely to

decide matters relating to its own interests; (7) The

judge of the Constitutional Court shall not speak or

express opinions to public or concrete cases being

examined by the Constitutional Court, including at

official seminars and speeches; (8) The judge of the

Constitutional Court may not seek a case by

encouraging anyone to file a lawsuit or petition to

the Constitutional Court; (9) The Constitutional

Court judge shall not proactively offer himself as an

intermediary in cross-border politics between State

institutions or between political institutions; and (10)

The Constitutional Court may not participate in

making an opinion on existence or about the good or

bad of the Constitution, or whether the prevailing

Constitution needs to be amended or maintained.

The Constitutional Court is only obliged to execute

or guard the existing Constitution and apply,

whereas the affairs of maintaining or altering are the

affairs of other authorized institutions (Mahfud MD,

2009).

For example, the Constitutional Court's decision

can not contain norms, the Constitutional Court may

not decide upon the petition (ultra petita), or in case

of Dispute over Election Result (PHPU), the

Constitutional Court only has the authority to decide

disputes or miscalculations of vote count

recapitulation. However, the practice of these signs

is difficult to always obey. The Court sometimes

needs to make legal breakthroughs to bring about

justice (Mahfud MD, 2009). The development, there

are some decisions of the Court that is ultra petita

(not requested) that leads to intervention into the

field of legislation, there is also a decision, in which

assessed to violate the principle of nemo judex in

causa sua (the prohibition of deciding matters

concerning itself), as well as decisions that tend to

regulate or verdict based on the contradiction

between one law with another law, whereas the

judicial review for the judicial review which can be

done by the Constitutional Court is a vertical namely

the constitutionality of the Law against the

Constitution, not a matter of clash between one Act

with another law (Mahfud MD, 2009).

The Constitutional Court's positive judgment and

bringing great legal implications towards the

creation of new norms in society, still holds crucial

issues, especially in the normative sphere. Decision

of the Constitutional Court Number 46/PUU-

VII/2010 concerning the Testing of Article 2

paragraph (2) and Article 43 paragraph (1) Law

Number 1 Year 1974 concerning Marriage, for

example one of the Constitutional Court's decisions

that aim for more human benefit high. The rules are

used by judges solely to humanize human beings

and not to exclude the purpose of the law itself.

Another example is the Decision Number 102/PUU-

VII/2009 on the Tests of Article 28 and Article 111

of Law Number 42 Year 2008 regarding the General

Election of President and Vice President. Voters

whose names have not been listed in the Permanent

Voters List (DPT) may continue to exercise their

voting rights using identity cards (KTP) or

passports. The release of this decision also further

explains the Constitutional Court in understanding

one of the most basic rights for citizens, namely the

right to vote. Especially for woman . Brien and

Piscopo examine how increases in the number of

female parliamentarians shape three outcomes:

policies and policymaking, public opinion, and the

legislature as a workplace. Reviewing the literature,

the authors conclude that female representatives

indeed diversify legislative agendas, especially

regarding women and other vulnerable groups.

Women’s presence also erodes negative perceptions

about women as political leaders, both among the

public and among politicians. However, O’Brien and

Piscopo also find that women’s presence meets

resistance, particularly because parliaments’ internal

cultures and leadership structures remain male-

dominated. Gender quotas mediate all these trends:

Quotas raise the number of female parliamentarians

and accelerate political and social change but may

also provoke backlash.

The debate between economic and political

explanations of the adoption of proportional

representation (PR) has occupied an important place

in recent years. The existing tests of these competing

explanations have generated inconclusive results.

Reformulating Rokkan’s hypotheses, we show that

both partisan dissatisfaction with the translation of

seats to votes and strong electoral competition at the

level of the district affect the decisions of politicians

to support changes in electoral institutions. In the

empirical part, we evaluate the relative importance

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of (a) district level electoral competition and

vulnerability to the rise of social democratic

candidates (b) partisan calculations arising from

disproportionalities in the allocation of votes to seats

and (c) economic conditions at the district level,

more specifically variation in skill profiles and ‘co-

specific investments’ in explaining legislators’

support for the adoption of proportional

representation.

Unlike the Constitutional Court Decision

Number 110-111-112-113/PUU-VII/2009 on Vote

Counting in Legislative Election 2009. The Court's

Decision gives certainty to the "vote" clause in

Article 205 paragraph (4) of Law Number 10 of

2008, so it does not lead to multiple interpretations.

The Constitutional Courts belonging the

European model depart more and more from their

traditional role as “ negative legislator” which refers

to the effect of their acts consisting in removal from

legal sistem of those rules contrary to the Basic Law

becoming, to a certain extent, a” positive legislator”

official interpreter of the Constitution, revealing the

content of constitutional and even infraconstitutional

rules in their case law, whose effects are nothing but

specific forms of impuls or coercion of the legislator

to proceed in a certain sense (Safta, 2012).

The basis of judges 'consideration of the

Constitutional Court makes the decision of a positive

legislature covers two types of legal considerations,

first, to ensure the citizens' constitutional rights and

the two argumentations. Consideration of digging,

following, and understanding the legal values that

lives in society. This is done in order to realize

substantive justice. Consideration of argumentation

is through the method of interpretation to find the

law. So, on the positive legislature decision studied

in this research. The Constitutional Court judges

based on the restrictive interpretation of narrowing

meanings.

Martitah is (Martitah, 2013) of the view, the

practical implication of the above statement, there

must be a boundary beam which is regulated in the

Constitutional Court Law which regulates among

others: 1) the judge in view of the matter is urgently

timed; 2) a legal vacuum occurs if no positive

legislature decision is made, which may cause chaos

in society; 3) the existence of usefulness, benefit,

and substantive authenticity based on the demands

and needs of the community to be achieved; 4) the

decision has a legal basis and is not questioned by

the public; 5) the decision of the Constitutional

Court, which is called the positive legislature, is

implemented only for one time and, or until the

formation of the Act, make its successor; 6) The

judges of the Constitutional Court must use moral

reading in reading the legal norms tested, so as to be

more careful and selective in making a positive

decision legislature, because the decision is

regulating, final and binding for the general public.

This means that if the verdict is in accordance with

the needs of the community then the verdict will be

accepted and vice versa if the verdict is not

appropriate then the verdict will sociologically

experience rejection and resistance. Donald Black

says in The Behavior of law, Yale University of pg.

21, Downward law is greater than upward law. This

means that, all else constant, law of every kind –

whether a statue, complaint, arrest, prosecution,

lawsuit, conviction, award of damages, or

punishment – is more likely to have a downward

direction than an upward direction. It means that

upward deviance is more serious than downward

deviance. In the case of a crime, for instance, a

victim who is above the offender in rank is more

likely to call the police than a victim whose rank is

lower than the offender’s. in the aggregate, in fact,

more calls to the police pertain to upward crimes

than to downward crimes. In modern America, for

example, the police handle more crimes committed

by blanks against whites than the reverse (see Reiss,

1967:53-54), by juveniles against adults the reverse,

and, in general, by poorer people against wealthier

people than the reverse.

The same applies to court cases. In Imperial

Rome, for example it was difficult for a man of low

rank to gain a hearing for his case against a superior

(Garnsey, 1968:7-8). In the New Haven Colony, in

seventeenth-century America, the lower ranks made

up the majority of the population, but the court

handled more downward than upward complaints

(Baumgartner, 1975:27). And, over time, as

complaints turn toward the higher ranks, law may

even retreat from its former jurisdiction. Thus, in the

Massachusetts Bay Colony, which trials came to a

halt when the accusations turned upward:

The net of accusation was beginning to spread

out in wider arcs, reaching not only across the

surface of the country but up the social ladder as

well, so that a number of influential people were

now among those in the overflowing prisons. Slowly

but surely, a faint glimmer of skepticism was

introduced into situation. The afflicted girls were

beginning to display an ambition which far exceeded

their credit. It was bad enough that they should

accuse the likes of John Alden and Nathanial Cary,

but when they brought up the name of Samuel

Willard, who doubled as pastor of Boston’s First

Church and President of Harvard College, the

Repositioning the Role of the Constitutional Court as Positive Legislature in Indonesia

1109

magistrates flatly told them they were mistaken

[Erikson, 1966:148, 149]. It is also more difficult to

win an upward than a downward case. In the Congo

(now Zaire), for instance, where Pygmies were

treated as the personal property of Bantus, a Pygmy

could never win :[The chief of the BaNdaka] did not

consider the Pygmies real people, and therefore they

had no right to have cases tried in the tribunal. He

said that any complaints by the [Bantu] villagers

against Pygmies were heard by him; he judged them

himself and no records were kept. He made it quite

plain that the judged them himself and no records

were kept. He made it quite plain that the judgement

always went in favor of the villager [Turnbull,

1961:234]. In Imperial Rome, also the party of

higher rank had an advantage : Even if the plaintiff

of low rank had been granted an action, and had

secured the appearance of his opponent before the

praetor [a court officer], he could not have had much

confidence in the outcome of the action. For a man

of influence would stand a good chance of winning

his case, even without corruption or the threat of

force. Judges and juries (where there were juries)

were easily impressed by qualities such as social

prominence, wealth and good character, and this

was thought perfectly proper [Garnsey, 1968:9].

4 CONCLUSION

The results of this study conclude that the

Constitutional Court has a positive legislature

function in its decisions. This is based on the

analysis of the three decisions of the Constitutional

Court that the author of the adoption of Decision of

the Constitutional Court Number 46/PUU-VIII/2010

on the Testing of Article 2 paragraph (2) and Article

43 paragraph (1) Law Number 1 Year 1974,

Constitutional Court Decision Number 102/PUU-

VII/2009 on the Testing of Article 28 and Article

111 of Law Number 42 Year 2008, Decision of the

Constitutional Court Number: 110-111-112-

113/PUU-VII/2009 on Counting of Votes in

Legislative Election 2009. The concept of positive

legislature the author has been appropriate and

reflects a sense of justice. This is based on the

following argument: (a) The Constitutional Court's

decision that contains the positive legislature as part

of progressive law enforcement. The creation of a

regulatory judgment is based on legal, philosophical

and sociological considerations that can not be

separated from legal interpretation; (b) The law is

not only seen from the spectacles of the text of the

law but rather revives the welfare in context.

Realizing that the law is not an independent or

absolute rule, the law is surrounded by the values of

society. The new norms born from the decision of

the Constitutional Court which is positive

legislature, and it directly has legal implications for

the wider community. The degree is equivalent to

the Act because it is final and binding. Reposition of

the Constitutional Court with the issuance of a

monumental verdict is said to be a verdict containing

a new principle which is to refine the old principle

without neglecting the old principle contained in the

previous judge's decision on similar and similar

matters.

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Constitutional Courts: does it really exist?, in: Judicial

Activism of the Constitutional Court in a Democratic

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