INDONESIAN JUDICIAL POWER POST AMENDMENT

Post the amendment of the Republic of Indonesia constitution, judicial authority in Indonesia underwent a fundamental change. The amendment was made based on the mandate contained in the 1945 Constitution post the amendment. Through normative juridical studies, an analysis of these changes will be carried out. The method of approach is based on statutory regulations and conceptually, as well as comprehensive. Post the amendment of the Republic of  Indonesia Constitution, in the beginning, only the Supreme Court had power in the field of justice. Then developed with the formation of new institutions in the field of justice namely: the Constitutional Court and the Judicial Commission. Through these additions, it is expected that checks and balances will occur in the formation of laws and regulations and the implementation of judicial power.


A. Introduction 1. Background
Trias Politica's doctrines more or less influenced the Indonesian constitutional system. But that does not mean that Indonesia uses the Trias Politica doctrine as stated by Montesquieu. The Indonesia Constitution, through several amendments it can be said that Indonesia is building towards legal doctrine concerning separation of powers. With the separation of powers it is intended that each power is possible to have checks on other powers so that they can balance each other in equality, thereby achieving harmonization of power that is in balance. 2 Such legal doctrine aims to prevent the arising of abuse or abuse of power, with checks and balances on every exercise of state power.
The Constitution of the Republic of Indonesia does not adhere to the Trias Politica separation of power as stated by Montesquieu, but the independent judicial power, free judicial authority no interference from any party, as Montesquieu's thought must be upheld. Such independent judicial power is a principle in the rule of law.
In the doctrine of separation of powers, an independent judiciary is part of an effort to guarantee freedom and prevent arbitrariness. An independent judicial power is a judicial power that is independent of the influence of governmental powers (executive or legislative), as an effort to guarantee and protect people's freedom from the possibility of arbitrary actions by the government. Thus, the presence of an independent judicial power is no longer determined by the separation of power or distribution of power system, but as a form of a balance in the life of the state namely the realization of the rule of law, guaranteed freedom and control over the course of government . In Indonesia judicial power is regulated in various laws in accordance with the respective judicial environment. With regard to independent judicial power, in Article 1 Paragraph 1 of Law Number 48 of 2009 concerning Judicial Power, provides limits on the scope of independence, namely that judicial power is an independent power to enforce law and justice based on Pancasila and the constitution, so that the ideals of Indonesia as a rule of law can be realized. Freedom of judicial power is not absolute, because judges in carrying out their duties to uphold law and justice must always rely on Pancasila, the constitution, laws and regulations, as well as the values that live in society, so that the sense of justice of the Indonesian people is always reflected in decisions from the judges.
Independent judicial power does not mean that judicial power can be exercised as freely as possible without oversight signs, such freedom is limited by law, which is regulated in procedural law which opens up the possibility of various legal remedies being proposed. Thus in the case of the function of the judiciary is a whole series of activities in the form of adjudicating an individual, concrete dispute case and in relation to the concept of an independent judicial power, which in the legal context includes authority, rights and obligations.
Thus judicial power can be interpreted as power, right and obligation to determine what and how the legal norms of cases of conflict-individual-concrete are presented to him. According to Paul Craig that in essence the judicial power has a central and strategic place in the constitution, and there is recognition of the role of the court in securing the rule of law, as well as resolving disputes fairly in accordance with applicable law. 3 Judicial power is bound by procedural rules called Procedural Law. An independent judicial power that is manifested in the freedom of judges in the judicial process, and the freedom of judges in exercising their authority, there are signs of formal legal rules and material laws, as well as unwritten norms called the general principles of good judicial administration. Thus the material legal rules and procedural rules, can be said as a normative limit to the freedom of judicial power or the freedom of judges in the judicial process.
Judicial power is a mandate of state power to be fully realized in an individual and concrete legal decision, to be applied to a legal case that is also a concrete individual. Judicial power can be interpreted as the authority and obligation to determine what and how the legal norms of a problem or case of conflict-individual-concrete that are presented to him by taking into account the basic law of the state. In the applicable national legal system, legal settlement in concrete individual cases is only in one hand, namely in the power of the judiciary. This applies not only to concrete cases relating to legal disputes between fellow citizens, but also applies to cases involving disputes between citizens and government, and even between state institutions.
Judicial power is aspired as an institution separate from political institutions and government institutions. This is clearly seen in the explanation of Articles 24 and 25 of the 1945 Constitution of the Republic of Indonesia before the amendment: "Judicial power is an independent power, meaning that it is independent of the influence of governmental power. In connection with that, guarantees must be made in the law on the position of judges ". The term government in the explanation must be understood in a broad sense, which includes an understanding of power in the field of government and the field of legislation formation, this is because prior to the amendment, the constitution did not enact the teachings about the separation of powers.However, judicial power must remain independent, meaning that it must be free and there must be no interference from any party and anyone including the influence and interference of government power. Therefore judicial power must be a separate and separate power apart from other powers namely executive and legislative powers. This is a special characteristic of state principles based on the law mandated in the Indonesian constitution.
Departing from the movement and spirit of reform, the thought to clarify and enforce the fundamental principles in a country based on the law, is getting stronger. For this reason, it is necessary to change the constitution. One of the fundamental changes can be seen in Article 1 paragraph (3) of the constitution: "The State of Indonesia is a state of law". In connection with this provision, one of the most important principles as a state based on law is to assure the fulfillment of the principles of independence and freedom of the exercise of power in the field of justice. Power in the field of justice must be free from interference by anyone, including executive and legislative interference, in the exercise of power in the field of justice to uphold law and justice.
Various steps were taken to strengthen the principle of an independent judicial authority in accordance with the demands of the reform movement in the legal field, for this reason, changes have been made to the applicable norms related to the issue of power in the field of justice. The change in norms meant is to make changes to Law No. 14 of 1970 concerning Principal Provisions on Power, and the last amended by Law No. 48 of 2009 which contains arrangements for power in the field of Justice. With this step in changing the law, a new policy has been enacted called the "one-stop policy" which means that all matters concerning these judicial bodies are under the control and supervision of the Supreme Court. With this one-stop policy, the fostering of all judicial environments is in the hands of the Supreme Court as the holder of power in the court As one of the pillars in the State's power system, power in the field of justice must be free from interference from anyone. Its task and function is to provide penalties (sanctions) for those who violate the law in the form of a law that is a product of the legislative body and the law that lives in society which is a law that applies in social life, even though it has not been regulated in laws and regulations.
The powers that exist in the field of justice are exercised by the Supreme Court along with the judicial bodies under it, is the power to examine and give decisions on cases submitted to him to uphold justice based on the law. Institutions that have power in the field of justice must be able to work well in their duties, so that objective and impartial decisions are made by always upholding law and justice. Therefore this body must be free from interference from anyone, including from the influence of government power.
In Indonesia, the power in the field of judiciary which is independent is one of the joints in the administration of state life, inseparable from the basic norms in the constitution that determine that the Indonesian state is a state based on law. One of the most important principles in these basic norms is related to the need to guarantee power in the field of justice that is free and does not favor anyone. In this connection Brian Z. Tamanaha argues in principle that: All parties must submit to and obey the law without exception, regardless of whether it is a state / government official or a citizen in general. 4 In addition to the one-roof policy on judicial bodies under the Supreme Court, in the next development was the birth of a new institution in the judiciary authority, namely the Constitutional Court whose authority was to examine the constitutionality of a law against the Basic Law, as well as the Judicial Commission one of its authorities is to supervise the ethics and behavior of judges.
The Constitutional Court is a judicial institution as one of the actors of power in the field of justice. The establishment of the Constitutional Court is a phenomenon of the modern state of the 20th century. The desire for a Constitutional Court in Indonesia arose and was strengthened in the reform era when changes were made to the 1945 Constitution of the Republic of Indonesia. However, in terms of the idea of a judicial review actually has existed since the discussion of the 1945 Constitution of the Republic of Indonesia by the BPUPK in 1945 but not yet realized.

Formulation Of The Problem
The Judicial Commission is one of the institutions that was born as one of the results of changes to the constitution whose existence is included as one of the institutions in the field of power in the field of justice. The constitution stipulates that: "The Judicial Commission is independent and has the authority to propose Supreme Court Judges and has other powers in the context of maintaining and upholding the honor, dignity and behavior of judges." The existence of the Judicial Commission is actually closely related to the supervisory function of the judges. Regulations regarding the supervisory function can be seen in various laws and regulations. Among other things the law regarding the Judicial Commission, even to the level of the Joint Regulation between the Supreme Court and the Judicial Commission regarding the code of ethics and guidelines for the conduct of judges.

Methodology
Various descriptions as mentioned above, the problem can be formulated as follows, namely: How power in the field of justice in Indonesia after the constitutional amendment. The study of the above problem is conducted in a normative juridical manner, which focuses on the regulatory and conceptual approach, in accordance with the specific legal scientific character. While the analysis was carried out in a comprehensive qualitative manner. B. Discussion

Separation of Powers
The separation of powers aims to divide or limit the power of the state to the institutions in carrying out their duties, so that absolutism does not occur which leads to oppression or negate the rights and freedoms of the people. Separation of power is interpreted by O. Hood Phillips as "the distribution of the various powers of government among different organs". In other words, the word separation of power is identified with the distribution of power depending on the context of the understanding adopted. 5 According to G. Marshall distinguishes the characteristics of the separation of powers into 5 aspects, namely: 1. Differentiation, differentiating the functions of legislative, executive and judicial powers. 2. Legal incompatibility of office holding, separation of powers requires that people holding positions in institutions cannot hold concurrent positions in other institutions.
3. Isolation, immunity independence, separation of powers determines that each organ may not interfere or intervene in the activities of other organ branches. 4. Checks and Balances, each organ controls and balances the power of other organs, where the purpose of this trait becomes the most essential to avoid abuse of authority in each organ that is independent. 5. Co-ordinate status and lack of accountability, organs or state institutions that carry out legislative, judicial, and executive functions have an equal position and have a coordinating relationship, not sub-ordinate to each other. 6 With the same approach, according to Aidul Fitriciada, Trias Politica which originated from the teachings of the Baron de Montesquieu and applies in a presidential system requires the separation of powers both institutional, function, and personnel, so that there is a reciprocal oversight and balance mechanism between the three branches of government. 7 The consequence of understanding the sovereignty of the people and state law is the division of powers between the branches of legislative, executive and power in the field of justice. In accordance with the understanding of popular sovereignty and the presidential system that prevailed post the amendment, the State of Indonesia adheres to the distribution of power based on the Trias Politica doctrine which emphasizes the strict separation between legislative, executive and judicial powers.
In that context judicial power has independence from all kinds of influences and interventions from other branches of power, both legislative and executive. So, an independent judicial power is basically an embodiment of a mechanism of supervision and balance which aims to protect the freedom of judges in trying a case. As stated by Rafael La Port et al., that judicial independence has a clear attitude to secure property and political rights when the government is a party in a case, such as in the case of confiscation of property by the state. 8

Constitutional Amendment in the Field of Judicial Power
Constitusional amendment strengthens and adds judicial power as regulated in Articles 24, 24A, 24B, 24C of the 1945 Constitution of the Republic of Indonesia. Through these articles it is mandated that two new institutions be established within the scope of power in the field of justice, namely the Constitutional Court and the Judicial Commission. This was initially discussed in the session of the Indonesian People's Consultative Assembly in 1998 -2002 which eventually gave birth to the 2 (two) new institutions and were included in the Chapter of Judicial Power of the Constitution. The existence of these two institutions has a vital role in a rule of law, where the Constitutional Court has the authority to guard the constitution, while the Judicial Commission is part of an effort to ensure the fulfillment of the concept of check and balance in the Judicial Power. In 2003 Constitutional Court law was born. The law complements regulations regarding judicial power in Indonesia. The main function of the Court in exercising powers in the field of justice is regulated in Article 10 letter a of the Constitutional Court Law No. 23 -2003, where among the various authorities are as a State Institution which conducts judicial review of the suitability of the Law against the Constitution. In Indonesia, testing a law is actually not something new, which was well known long before the reform era. The birth of material testing rights is based on the principle of ultra vires, which incidentally in the UK legal system of ultra vires rules can be used as an excuse to carry out testing or material testing of general and concrete norms. So from the existence of this court, the judiciary also runs the concept of checks and balances against other state institutions (law-making institutions).
Talking about the material test rights in Indonesia, one aspect is to discuss the regulation of the test rights, which is regulated in the constitution and other laws and regulations. Constitutionally, prior to the amendment, the provisions concerning the test rights held by the Supreme Court were not regulated, but the juridical basis of the authority of the Supreme Court to implement the material test rights can be seen in the following provisions: 1. Article 11 paragraph (4) of MPR Decree Number III in 1978, which states: "The Supreme Court has the authority to examine materially only against Legislation under the Law". 2. Law on the main points of judicial power in 1970, which in article 26 stipulates that: "The Supreme Court has the authority to declare invalid all laws and regulations of a lower level than the Law for reasons contrary to the higher Statutory Regulations." "Decisions about the illegitimate statement of the laws and regulations can be taken relating to the examination at the cassation level. Revocation of the legislation that is declared invalid is carried out by the agency concerned." 3. The 1985 Supreme Court Law, which in article 31 stipulates that: a. "The Supreme Court has the authority to examine materially only the provisions of the law against the Act." b. "The Supreme Court has the authority to declare that all laws and regulations of a lower level than those of the law are invalid based on reasons contrary to the higher statutory regulations." c. "Decisions about the illegitimate statement of the laws and regulations can be taken relating to the examination at the cassation level. Revocation of legislation that is declared invalid, is carried out immediately by the agency concerned." 4. PERMA No. 1 of 1993 concerning the Right to Judicial Review, which regulates procedural law concerning the implementation of judicial proceedings concerning the right to judicial review, but also contains an expansion of the testing authority for all judicial powers. In other words, this regulation gives the authority to exercise the right of judicial review to the First Level Court, the Court of Appeals, and the Supreme Court. This is clearly regulated in the provision of Article 3 PERMA Number 1 of 1993, which states: a. "The Court of Judges of the First and Appellate Courts who examine and decide on the lawsuit for judicial review rights, can declare legislation that is contrary to the laws and regulations higher and has no legal force and does not bind the parties to the litigation." b. "If the Supreme Court Assembly is of the opinion that the lawsuit is grounded, the Panel of Judges accepts the suit and states that the lawsuit sued is invalid because it contradicts the higher laws or regulations." After the change of the constitution, the authority of the material test, in this case both the testing of the Law on the constitution and the testing of regulations under the Law on the Act, is essentially the implementation of a balanced supervision system between state institutions.The Supreme Court and the Constitutional Court as executors of powers in the field of judiciary who have the competence to conduct material tests, are expected to make efforts to uphold the constitution and principles in a state based on the law in accordance with their duties and authorities. One of the basic norms in the constitution reads: "The constitutional court has the authority to adjudicate at the first and last level whose decisions are final to review the law against the Constitution ... ".
Before the formation of a constitutional court, the process of drafting a law was very often influenced by the interests of groups or individuals. In the process the mechanism and values of democracy are indeed still respected, but this cannot guarantee that a law that is formed democratically, is a law that is sterile from the interests of groups or individuals. It is undeniable that such a situation will always harm the rights or interests of some other groups or even harm citizens' rights. Therefore, it is necessary to carry out legal reforms from the law making process to the law enforcement process in order to guarantee the principle of protection of human rights. Politics in certain conditions is often a determinant of the law. In one of his articles entitled Cambio de determinación política sobre la ley id Indonesia, Krisnadi Nasution et al. states: "... politics has a determinant position over the law, because in the process of its formation...". 9 This opinion is reasonable, so that basic steps are needed to address these conditions. Is a very naive thing, if the material of a law is not accommodating the interests of the community but is loaded with the interests of groups or individuals.
The Constitutional Court is also referred to as a constitutional court (constitutional judiciary), an organ that has the authority to examine materially and formally the constitutionality of a law against the basic norms in the constitution. This Court can facilitate each of the interests of individuals or community groups to question the constitutionality of a state policy in the form of laws (executive and legislative bodies as legislators).
After the formation of the Constitutional Court, the political interests of groups and individuals in the formation of laws will always be monitored and guarded. If the interests are not in accordance with the basic norms contained in the constitution, a constitutionality test can be carried out on them. Thus, the nuances of certain political interests contained in the law will automatically be annulled by citizens through the authority of the judicial power, so that various thoughts contained in the books written by many scholars who state that political interests are crucial in the formation of law, need to be questioned again with the existence of a judicial institution that has the authority to oversee the constitutionality of a law.
(2) The Judicial Commission The Judicial Commission is a judicial institution mandated through an amendment to the 1945 Constitution of the State of the Republic of Indonesia to supervise judges.Supervision of judges as bearers of power in the field of justice, is very necessary and important. Which is considering the experience in the pre-reform era, where the executive was very dominant and without adequate supervision. So that past experiences will not be repeated in the environment of the authority in the field of justice. In other words depart from one of the spirit of reform, namely to prevent the existence of executives that are heavily repeated or even transmitted to the heavy judiciary.
That thing could have happened, because after the one-roof policy control under the Supreme Court, there was concern that the Supreme Court would be transformed into a judicial tyranny. This unification under one roof has the potential to give power to the Supreme Court to protect troubled judges. For this reason, there is a need for oversight of external judges, because internally the guidance and supervision of judges is under the Supreme Court. The Judicial Commission was born to realize checks and balances in the judiciary field, and it is hoped that the existence of this institution will be the answer to the concerns mentioned above.
The opinion of some parties, the agency that administers power in the field of justice is only the Supreme Court and the Constitutional Court. If what is used as a measure of its existence as an institution that upholds legal norms, such thinking is reasonable. The existence of the Judicial Commission is not explicitly upholding legal norms, but rather is in the realm of ethics. In other words, it can be referred to as an ethical commission for judges who in carrying out their duties and obligations have several problems. The problem is not a legal problem, but in relation to the behavior of a judge.
The Judicial Commission has a role in maintaining and overseeing justice reform through some of the initial breakthroughs that it did. Departing from various problems that enveloped law enforcement officers in the judicial environment, starting from the lowest level to the highest level. In carrying out its duties, the Judicial Commission has examined various circles of justice. This behavior was highly valued by the public so that many of the people reported judges who were considered naughty to the Judicial Commission. This phenomenon clearly creates inconvenience for the judges, and this is the beginning of the appearance of a dispute with the judges. The dispute surfaced, beginning with the constitutionality of the 2004 Judicial Commission Law on the Constitution.
The lawsuit (petition) is submitted on behalf of individuals (Supreme Court justices), which is because the Supreme Court has no legal standing as an institution or cannot be parties to disputes at the Constitutional Court. Then what is promoted are the judges individually. The contents of the lawsuit basically revolve around three things. First, that the Chief Justice is not part of the scope of the oversight of the Judicial Commission, it is stated that the Judicial Commission only proposes its nomination, whereas to monitor the behavior it is said to apply to the judge. So for the plaintiffs, the understanding between Judges in the Supreme Court and Judges in the lower judicial bodies must be distinguished, so that the contents of Law Number 22 Year 2004 which equates the understanding between Judges in the Supreme Court and other Judges must be declared contrary to the constitution , unconstitutional.
Secondly, the petitioners requested that the interpretation of the Constitutional Justice is not equated with the definition of a judge who could be supervised by the Judicial Commission because the Constitutional Justice was different from other Judges. Third, the authority of the Judicial Commission to supervise judges must be declared contrary to the Constitution because the criteria are unclear and excessive. Moreover, in practice the Judicial Commission often examines judges by questioning the contents of decisions, which clearly violate the principles of freedom and independence of judicial power. 10 With the description of the lawsuit, based on legal considerations the Constitutional Court came to the following conclusions: First, the application was granted requesting that the constitutional judge not be included in the definition of a judge whose ethical behavior was overseen by the Judicial Commission. secondly, matters relating to the Chief Justice are not sufficient reason to grant them. Third, the thing that is even more substantial or fundamental to be decided is the petition of the Petitioners relating to the regulation regarding supervision procedures. Regarding this matter, the Constitutional Court stated that: 1. The formulation of Article 13 letter b juncto Article 20 of the Judicial Commission Law concerning "other authorities" uses a different sentence formulation when compared to constitutional norms, so the formulation of the norms in the Judicial Commission Law raises legal uncertainty. 2. The Judicial Commission Law proved to be not detailed in regulating the monitoring procedures, it was not clear and firm in determining who the subjects were supervising, the object being monitored, what instruments were used and how the monitoring process was carried out. It is not clear and the details of the regulation regarding supervision in the Judicial Commission Law as well as differences in the formulation of sentences as referred to in number 1 above, cause all the provisions of the Judicial Commission Law on supervision to be obscured and cause legal uncertainty (rechsonzerkerheid) in its implementation. 3. The concept of supervision contained in the Judicial Commission Law is based on an incorrect conceptual paradigm. The Supreme Court and the Judicial Commission have a close relationship, but not in the context of the pattern of "Checks and Balances" relations between branches of power in the context of the doctrine of separation of powers, giving rise to interpretations that are also incorrect, especially in their implementation. If this is left without resolution, then the tension and confusion between the two institutions will continue. Confusion in justice-seeking societies will continue to increase, which in turn can also delegitimize the power of the judiciary which will make it even more untrustworthy. Law Number 48 Year 2009 concerning Judicial Power was born after the conflict between the Supreme Court and the Judicial Commission, which is the implementing agency, and which supports aspects of judicial power. The main problems in the conflict are the oversight mechanism, and the surveillance model. So that politics in the Act is to answer the need for clear arrangements regarding the authority, relations and communication of institutions related to power in the field of justice.
The Judicial Power Act of 2009 not only covers the mechanisms and models of supervision of the three institutions, but also extends to the aspects of agency coordination and communication, so that the accent of unity in a system is truly realized. In addition, prevention of overlapping authority and conflicts between institutions can be prevented.
The roles and functions of each institution in the area of judicial power synergize in achieving the objectives of judicial power in Indonesia, namely ensuring the rule of law. Through the inter-institutional control and supervision function, is an effort to prevent overlapping functions and to ensure that the objectives to be achieved can be realized. In this connection, supervision of the practice of exercising power in the field of justice includes: 1. The Supreme Court as the supreme supervisory body of the judicial body underneath, this includes administrative and financial duties, internal supervision of the judge's behavior. In examining and deciding cases, the judges still have independence and are free from interference from anyone. 2. The Judicial Commission is an institution that exerts external oversight of the behavior of judges. 3. The formulation and supervision instruments in the realm of work carried out by the Judicial Commission, namely the Code of Ethics and the Code of Conduct for Judges. The formulations and instruments referred to are based on an agreement between the Supreme Court and the Judicial Commission, and are set forth in the form of a Joint Decree. 4. The Judicial Commission is allowed to conduct examination of a judge's decision, even the decision of a judge who has inkracht van gewijsde, as a material for consideration in providing recommendations for mutating a judge. 5. Supervision of constitutional judges is carried out by the Honorary Council of Constitutional Justices, and is further regulated in a law.

C. Closing
Based on a number of the above descriptions, after the change in the constitution there has been a clear and concrete development of the institution of authority in the field of justice. Through Law No. 48 of 2009 concerning Judicial Power, it is hoped that Indonesia's judicial power reform will be realized.
In order to realize the legal objectives contained in Law Number 48 Year 2009, among others, independent judicial power (independent and impartial), the judges (from the first level of judges to the Supreme Court justices), judges in the Constitutional Court, and commissioners from the Judicial Commission must always place the law at the highest level. So that the affirmation that the State of Indonesia as a state of law as stated in the Indonesian Constitution can be achieved.