ESTABLISHMENT OF NATIONAL LEGAL SYSTEM IN POLITICAL LAW PERSPECTIVE: (POLITICAL LAW OF LEGISLATION IN SUBSTANTIVE ISLAMIC VALUES IN NATIONAL LAW ESTABLISHING)

Afri Yendra

Abstract


Establishing national laws by integrating the objectives of establishment of national laws and uniting it by taking into account the cultural diversity of the population; the main diversity and priority of concern is the diversity of Religion. Indonesia has a population whose majority are Muslim sociologically is a presentation of the soul Indonesian people, so it would be nice if the politics of Islamic law becomes a reference for Indonesian law to be applied in Indonesian positive law. The main of Establishment of Political Law is that there are Islamic values in every National Law, so legal drafters who have Islamic Values are needed. It also needed the participation of Islamic Universities in preparing legal drafter.

Keywords


Politic, Law, Legal drafter

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References


Mohd. Mahfud MD, 2010, Politik Hukum di Indonesia, PT. Grafindo Persada, Jakarta, hal 34.

Mohd. Mahfud MD, 1999, Pergulatan Politik dan Hukum di Indonesia, Gama Media, Yogyakarta, p. 30.

Mochtar Kusumaatmadja, 2011, Konsep-konsep Hukum dalam Pembangunan; kumpulan karya Tulis, PT. Alumni, p.188.

Mochtar Kusumaatmadja, 2011, Konsep-konsep Hukum dalam Pembangunan; kumpulan karya Tulis, PT. Alumni, p.188.

Afri Yendra, 2014, Tekhnik Pembuatan Perundang-undangan, Syamza, Bukittinggi, p. 16.

Afri Yendra, 2014, Tekhnik Pembuatan Perundang-undangan, Syamza, Bukittinggi, p. 16.

See article 1 verse (3) Law on The 1945 Constitution of the Republic of Indonesia

Padmo Wahyono, 1986, Indonesia Negara berdasarkan atas Hukum, Ghalia Indonesia, p.7.

Ibid.

Ibid.

Padmo Wahyono, 1986…p.9.

Muhammad Tahir Azhary, 2003, NEGARA HUKUM: suatu Studi tentang Prinsip-prinsipnya dilihat dari segi Hukum Islam, Implementasinya pada Periode Negara Madinah dan Masa Kini, Prenada Media, Jakarta, p. 94.

Mochtar Kusumaatmadja, 2011, Konsep-konsep hukum dalam Pembangunan, Pusat Studi Wawasan Nusantara, hukum dan Pembangunan Bekerjasama dengan Penerbit PT. Alumni, Bandung, p. 188.

Andi Hamzah, 1986, Kamus Hukum, Ghalia Indonesia, Jakarta, p. 543.

Ibid p. 15

Ibid p. 20

Abdul Manaf, 2008, Refleksi Beberapa Materi Cara Beracara di Lingkungan Peradilan Agama , Mandar Maju, Bandung, p. 35.

Ibid.

Abdul Rachmat Budiono, 2003, Peradilan Agama dan Hukum Islam di Indonesia, Bayumedia Publishing, Malang, p. 1.

Afri Yendra, Ibid, p. 23.

“Principle of protection” is that each Content Material of Laws and Regulations must function to provide protection to create public tranquility.

“Principle of humanity” is that each Content Material of Laws and Regulations must reflect the protection and respect for human rights and dignity for every citizen of Indonesia proportionally.

“Nationality principle” is that each Content Material of Laws and Legislation must reflect the diverse nature of Indonesian nation while maintaining the principle of the Unitary State of the Republic of Indonesia.

“Principle of kinship” is that each Content Material of Laws and Legislation must reflect deliberation to reach consensus in every decision making.

“Principle of archipelago” is that each Content Material of Laws and Regulations takes into account the interests of the entire territory of Indonesia and regional legislation is part of the national legal system based on Pancasila and the 1945 Constitution of the Republic of Indonesia.

“The principle of Bhinneka Tunggal Ika” is that the Content Material of the Laws and Regulations must pay attention to the diversity of the population, religion, ethnicity and class, the special conditions of the region, and the culture in the community, nation and state.

“Principle of justice” is that each Content Material of Laws and Regulations must reflect proportional justice for every citizen.

“The principle of equality in law and government” is that each Content Material of the Laws and Regulations may not contain laws that are discriminatory based on background, among others, religion, ethnicity, race, class, gender, or social status.

“The principle of order and legal certainty” is that each Content Material of the Laws and Regulations must be able to create order in the community through guaranteeing legal certainty.

“Principle of balance, suitability and harmony” is that each Content Material of Laws and Regulations must reflect balance, suitability, and harmony, between individual interests, society and the interests of the nation and state.

Article 5 Laws No.12 of 2011 states that “In establishing the Laws and Regulations must be carried out based on the principle of Establishing a good Legislation, which includes: a. clarity of purpose; b. the right forming institution or official; c. compatibility between type, hierarchy, and material content; d. can be implemented; e. usability; f. clarity of formulation; and g. openness.

“Principle of clarity of purpose” is that every Establishment of Legislation must have clear objectives to be achieved. See the explanation of article 5 Laws No. 12 of 2011.

“The right institutional principle” is that every law must be made by an authorized state institution or legislator. The legislation can be canceled if it is made by an unauthorized state institution. See the explanation of article 5 Laws No. 12 of 2011.

“The principle of conformity between types, hierarchies, and material content” is that legislation must pay attention to the proper material content in accordance with the type and hierarchy of legislation. See the explanation of Article 5 of Laws No. 12 of 2011.

“Principle of implementation” is that every Establishment of Laws and Regulations must take into account the effectiveness of the legislation in the community, philosophically, sociologically and juridically. See the explanation of Article 5 Laws No. 12 of 2011.

“The principle of usefulness and usability” is that legislation is made because it is really needed and useful in regulating the life of the community, nation, and state. See the explanation of Article 5 Laws No. 12 of 2011.

“The principle of clarity of formulation” is that legislation must meet the technical requirements for drafting legislation, systematics, choice of words or terms, and legal language that is clear and easy to understand so as not to cause various kinds of interpretations in its implementation. See the explanation of Article 5 Laws No. 12 of 2011.

“Principle of openness” is that the establishment of legislation starting from planning, compiling, discussing, ratifying or stipulating, and promulgating is transparent and openness. Thus, all levels of society have the widest opportunity to provide input in the establishment of legislation. See the explanation of Article 5 Laws No. 12 of 2011.

Maria SW Sumardjono, Pedoman Pembuatan usulan penelitian, Yogyakarta, 1989, p. 13

The drafting and existence of general rules and understanding in law is needed to enable or facilitate the processing of mass legal material in processing systematization and structuring the legal material. Arief sidharta, Refleksi Tentang ilmu Hukum, Mandar Maju, Bandung, 2000, p.154

Radbruch distinguishes two types of legal concepts, namely legally relevant concepts and genuine legal concepts, the second is legal concepts. The legally relevant concept is a concept which is a component of the rule of law, especially the concept used to describe the situation of facts in relation to the provisions of legislation explained by interpretation. For example the concept of facts such as objects, carrying away or taking, purpose or purpose, etc. The definition of legal concepts is a constructive and systematic concept that is used to understand a legal rule, for example the concepts of rights, obligations, legal relations, legal institutions, engagement, marriage, inheritance, buying and selling, etc.

B. Arieh sidharta, Refleksi Tentang ilmu Hukum, Mandar Maju, Bandung, 2000, p.154

Marzuki Wahid and Rumadi, 2001, Fiqh Madzhab Negara: Kritik atas Politik Hukum di Indonesia, cet.1, LKiS, Yogyakarta , p. 10.


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