EKSISTENSI PANCASILA SEBAGAI TOLOK UKUR DALAM PENGUJIAN UNDANG-UNDANG TERHADAP UNDANG-UNDANG NEGARA REPUBLIK INDONESIA 1945 DI MAHKAMAH KONSTITUSI: KAJIAN PERSPEKTIF FILSAFAT HUKUM DAN KETATANEGARAAN

Abstract

Not only played an important role as the guardian of constitution, the Constitutional Court is also functioned as the guardian of ideology, Pancasila. It means that Pancasila should be used as the basis to examine, nullify and to decide the Constitutionality of laws in Indonesia. This research critically analyses: (i) Why do Pancasila, the Indonesian rechtsidee, should be used as a measuring instrument or as a reviewing tools on the process of constitutional review in the Constitutional Court; (ii) Precedents or decided cases that used Pancasila as the basis to determine the constitutionality of a particular law (especially a judicial review of Acts in the area of politics, economic, social and religion during 2003-2013); (iii) The best formula to ensure the Constitutional Court to always use Pancasila as the main basis for judicial review of laws. This research is based on positivism paradigm. A doctrinaire approach is utilized to address the research questions and to reach the objectives of this research. Additionally, a deductive analysis is used in this research. This work has found that: First, there are convincing facts that Pancasila as the national principle was born on 1 June 1945 when Soekarno gave speech in front of BPUPK general assembly. Pancasila was not born on 18 August 1945 at the same time with the ratification of the Constitution (UUD 1945) since the legal position of Pancasila and the Constitution is not equal. Pancasila should be used as a measuring instrument for the Constitutional Court to review the constitutionality of every law considering the legal position of Pancasila as the rechtsidee of Indonesia that has regulatory function to determine the fairness of a particular law. Second, during 2003-2013 there are three types of Court decisions from Pancasila perspective: decisions without consider Pancasila as a measuring instrument, decision that not only mentioned articles in the Constitution but also stated about the value of Pancasila but the value of Pancasila are not clearly mentioned as a measuring instrument; and decision that clearly used Pancasila as a measuring instrument. Third, the best formula to ensure the Constitutional Court to always use Pancasila as the main basis for judicial review are by judicial interpretation and by amending Law regarding Constitutional Court