Political Law Regulation of Judicial Institutions in Exercising the Powers of an Independent Judgment: Before and After Amendments to the 1945 Constitution

The Supreme Court is a judicial institution that has existed since the Indonesian state was formed in 1945. This institution was formed based on the mandate of the constitution in article 24 of the 1945 Constitution, namely "judicial power is exercised by a Supreme Court and other judicial bodies according to law". But in fact, in the course of Indonesia's national and state life from its independence in 1945 to 1998, the judicial power exercised by the Supreme Court was not free and independent, both institutionally and independently of its judges. The influence of the executive power held by the president on the judicial power exercised by the Supreme Court can actually be observed in the politics of regulating judicial power through laws by the executive and legislative bodies during the old order government (President Soekarno 19451966) and the new order (President Soeharto 1967-1998). The judicial power law that was formed has actually subordinated the judiciary under the power of the president. This is the result of efforts to form the state of Indonesia as a country based on kinship that does not adhere to a separation of powers (executive, legislative and judicial) as the trias politica concept put forward by John Locke and Montesquie. With the 1998 reforms which in turn succeeded in amending the 1945 Constitution in order to realize the Indonesian state as a democratic legal state, the judiciary has been strengthened as an institution that is truly free and independent from the influence of extra-judicial powers.


Introduction
In a state of law, according to the rechstaat concept, the rule of law and socialist legality essentially implies the establishment of a judicial institution, so that law and justice can be upheld. Law and justice are two inseparable things, like the human body which consists of body and soul.
In order for legal practice to be truly fair, the presence of a judiciary is a necessity. In the legal system theory put forward by Lawrence Friedman, law can be upright determined by three things, namely, legal structure, legal culture or behavior, and legal material. The legal structure focuses more on law enforcement officers played by lawywers (law bearers), namely Judges, Prosecutors, Police, and Advocates. And in order for the effective role of the law bearer, a law enforcement agency was formed, and the most important thing to determine law enforcement is the judiciary.
Since its establishment in 1945, in its constitution, the 1945 Constitution has declared itself a rule of law (rechtstaat) not a power state (machtstaat), which of course has to present a judicial institution. The first sign of the order to establish a judicial institution in Indonesia is stated in article 24 of the 1945 Constitution that "judicial power is exercised by a Supreme Court and other judicial bodies according to law".
The Supreme Court (MA) is a judicial institution that still exists to exercise judicial power (judiciary) in Indonesia in addition to other branches of state power, namely the legislature (DPR / MPR) and the executive (President) (Amir, 2020). In its journey, the Supreme Court's role in carrying out its functions and authorities as a judicial institution in upholding law and justice has experienced an influence of extra-judicial powers, namely executive and legislative powers (the most concrete is the influence of executive power (Ginsburg, 2003;Nason, 2012;Harrington & Manji, 2015;Junaedi, 2020).
In this paper, the author intends to describe the existence of the independence of the judiciary which historically has been influenced and intervened by extra-judicial powers, especially the influence of the president's power (executive power holders). Experts divided the journey of life into the state of the Indonesian nation in three stages, namely; 1) the old order, with the icon of President Soekarno's power which is famous for his political policy of the Guided Democracy constitutional state, 2) the new order, symbolized by the power of President Soeharto, who is known as the father of development with a constitutional political policy, namely Pancasila Democracy, with a very popular doctrine of "promising Pancasila and UUD 1945 purely and consistently ", and 3) the reformation order, which was marked by the success of reformists in amending the 1945 Constitution which further clarified the existence of an independent, neutral and independent judicial power. The national elite who pushed for and spearheaded the reform movement in turn succeeded in amending the 1945 Constitution, which in essence was to strengthen the Indonesian state as a democratic constitutional state.
Of the three stages of the life of the Indonesian nation above, the existence of the independent judiciary (judiciary) experienced significant influence and intervention during the old and new order government regimes. Ironically, this influence is based on the interpretation of the constitution (UUD 1945) which is interpreted by making laws which regulate it related to judicial power and / or judicial institutions. This situation is one that underlies the thoughts and actions of the groups of fighters for reform in 1998, to immediately amend the 1945 Constitution so that the order of Indonesian state life returns to the ideals of proclamation and the goals of the state as set out in the Preamble to the 1945 Constitution. Based on the above background, problems related to the existence of the independence of the judiciary as an institution exercising judicial power in Indonesia before and after the amendment of the 1945 Constitution can be formulated. judiciary in exercising judicial power after amendments to the 1945 Constitution. As in general, legal research is divided into two types, namely the type of normative legal research and the type of empirical legal research. In this paper the authors use a normative research type using qualitative analysis. By collecting research materials (data) contained in the 1945 Constitution (before and after the amendment), laws governing judicial power and / or judicial institutions, opinions or views of constitutional law experts who provide an assessment of the existence of the independence of the judiciary in Indonesia

Regulations and institutional practices of judicial power prior to amendments to the 1945 Constitution
Judicial power according to Articles 24 and 25 of the 1945 Constitution is exercised by a judicial institution, namely the Supreme Court (MA), wherein the way the Supreme Court works is regulated according to law. Article 24 states that; Judicial power is exercised by a Supreme Court and other judicial bodies according to law. Furthermore, Article 25 states that; the structure and powers of the judicial bodies shall be regulated by law. Meanwhile, in explaining how the Supreme Court's position as a judicial power side by side with the legislative and executive powers, it can be seen in the explanation of the 1945 Constitution, which reads: judicial power is independent power, meaning that it is independent of the influence of government power. In this connection, a guarantee must be made in the law regarding the position of judges.
From the norms of the 1945 Constitution above, the existence of judicial power carried by the Supreme Court implies a free, independent and independent power that cannot be influenced by powers outside of itself. This is as stated by Waluyo, (1992), that: It is further emphasized by the explanation of these articles (articles 24 and 25 of the 1945 Constitution) that judicial power is an independent power, meaning that it is independent from the influence of government power. In this connection, a guarantee must be made in the law regarding the position of judges.
Furthermore, the independence and independence of judicial power in practice will also be very much determined by the law as the elaboration of the mandate of articles 24 and 25 of the 1945 Constitution (Jackson, 2006;Moustafa, 2007). Meanwhile, the laws that will regulate judicial power are very much determined by the President and the DPR which according to the 1945 Constitution that the President and The DPR is an institution that has the power to form laws, especially the President who holds the power to form laws with the approval of the DPR. According to Nasution, (2007) with this statute instrument the President has intervened and controlled the judicial power. Both President Soekarno and President Soeharto have used the law to control the Supreme Court as an institution that exercises judicial power so that it cannot work freely and independently.
"If traced back, the actual efforts to lock up the judiciary in Indonesia began when this country entered the Guided Democracy era in 1959" ... the division of power as outlined in the 1945 Constitution, let alone the separation of powers between branches of government (based on the trias poiitica doctrine) eliminated, because President Soekarno considered the doctrine to be obsolete. The heads of high and highest state institutions were placed under the president as ministers, and at that time the Chief Justice of the Supreme Court, Wirjono Projodikoro, was also appointed as a minister in the Gotong Royong Cabinet.
Although explicitly in the explanation of articles 24 and 25 of the 1945 Constitution that judicial power is independent of government power. However, it turns out that the executive power, in this case the president, continues to violate commitments in the constitution. Indeed, in the perspective of the 1945 Constitution, the President has been positioned as a very expansive power. One of the most strategic powers of the president is holding the power to form laws with the approval of the DPR. This means that the president as the holder of executive power as well as the legislative power. It is true that the Indonesian state does not adhere to the separation of powers theory, but applies the theory of power sharing. So that the president can interpret that his power can cross over to the legislative power, which in fact is only in the hands of the DPR. The provisions in two laws (Law 19/1964 andLaw 13/1965) which have clearly provided room for executive power (the president) to interfere with the judicial power (judiciary) are found in: first, Article 19 of Law 19/1964 which reads "In the interests of the revolution, the honor of the State and the Nation or the urgent interests of the people, the President can step down or interfere in court matters". This provision explains that intervening means the termination of the case being examined and in this case the court does not issue a decision, while the intervention means that the president can participate in making a decision on a case.
Secondly, Article 23 of Law 13 of 1965 describes in more detail what kind of president's intervention in the judicial process organized by the judiciary, which reads: (1) In cases where the President intervenes, the trial shall immediately stop the examination being carried out and announce the President's decision in an open session by affixing a note in the minutes and attaching the Presidential decision in the file without imposing a verdict; (2) In cases where the President expresses his desire to intervene in accordance with the provisions of the Basic Law on Judicial Powers, the trial shall terminate deliberation with the prosecutor; (3) Deliberation as referred to in paragraph (2) is aimed at carrying out the wishes of the President; (4) The President's wishes and the results of the deliberations shall be announced in an open session after the session is reopened. The regulation and practice of the judiciary in the era of the old order government regime under the control of President Soekarno have clearly killed the freedom and independence of the judicial power. So much is the power of the president to interfere in the judicial process, to the point of being able to stop cases and also to issue decisions. The wishes of the president are clearly stated in the provisions of the law, while the wishes of the president can only be made of personal desires that harm the interests of many people. And this has the potential to give birth to an authoritarian, repressive and anti-criticism attitude that has implications for human rights violations.
The end of President Soekarno's power in 1966 brought new hope, which was marked by the inauguration of Suharto as President of the Republic of Indonesia on March 12, 1967 by the Provisional People's Consultative Assembly (MPR). The presence of this new presidential official is predicted to provide an improvement over the chaos in state life during the old order. The main thing is that the judiciary is not independent in upholding law and justice, which can still be interfered with by the wishes of the President. How the regulation and practice of judicial power after President Soakarno's leadership can be seen in the issuance of Law no. 14 of 1970 which was effective in the New Order government regime with a great power icon in the hands of President Soeharto. The existence of Law 14/1970 was initially a new hope for the Indonesian nation, especially in terms of independence and independence of judicial power. This is because the experience during the old order government regime with an icon of great power in the hands of President Soekarno, has influenced and controlled the Supreme Court as a symbol of justice. In its journey, the practice of judicial power which refers to Law 14/1970 has finally experienced a distortion due to the enormous opportunity for the influence of the executive power, namely President Soeharto, to the Supreme Court. The power of the president can enter through the appointment of judges to judicial bodies within the Supreme Court (General Courts, Military Courts, State Administrative Courts, and Religious Courts) by the president as head of state.
Furthermore, the executive power intervention in the judiciary can be carried out through the guidance of judges as civil servants (PNS) who are controlled by officials from their respective ministries. General Court Judges under the guidance of the Minister of Justice, Religious Court judges under the guidance of the Minister of Religion, and Military Court judges in the guidance of the Minister of Defense and Security. Even though these ministry officials are under the control of the president, because cabinet ministers are the president's assistants. Before the birth of Law no. 14 of 1970, there has been a very sharp difference between the judges gathered in the Indonesian Judge Association (Ikahi) which is supported by the Indonesian Advocates Association (Peradin) which has a different concept with the Ministry of Justice in regulating the first question, regarding the independence of the judiciary and second, the power judicial institution namely the Supreme Court to review (review) the validity of statutory regulations. Ikahi and Peradin wish that the independence of the judiciary should no longer be mixed with the Ministry of Justice's authority which can administer the personal and financial administrations of court judges. Meanwhile, the Ministry of Justice does not agree with the concept of Ikahi and Peradin which wants to separate judicial power from executive influence. In the end, Ikahi and Peradin's wishes were still not accommodated in the Law on Judicial Power (Law 14 of 1970), this was because Ikahi and Peradin had no power to influence the formation of laws which constitutionally belong to the President's authority approved by the DPR.
So the regulation of judicial power through Law 14 of 1970 concerning the Principles of Judicial Power has not fully implemented the meaning of a rule of law which implies that a free and independent judiciary cannot be influenced or interfered with by other powers. Formally, the MA institution can be said to have been positioned as a free and independent judiciary, but substantially in the sense that the human and financial resources of this institution are still under executive control through the authority of the Ministry of Justice, which in fact is an assistant to President Soeharto. Regulations regarding the position of judicial power that are carried out by judicial institutions (Supreme Court and / or judicial bodies under the MA) according to article 1 of Law 14 of 1970 reads: judicial power is the power of an independent state to administer judiciary to enforce law and justice based on Pancasila, for the sake of its implementation. State of law of the Republic of Indonesia. This is reinforced by the sound of article 2 of Law Number 14 of 1985 concerning the Supreme Court, namely that the Supreme Court is the Supreme Court of the State from all areas of the judiciary, which in carrying out its duties is independent from government influence and other influences. As far as the provisions of Law 14/1970 and Law 14/1985, normatively, the judicial power is placed as an institution that cannot be interfered with by other powers (executive and legislative). But the hope for a judicial institution that is free and independent from the influence of the government or other powers during the New Order regime, is only hope, as has been stated by Nasution, The position of court judges is no different from civil servants as regulated in Law no. 8 of 1974 concerning Personnel Principles, which results in the General Court environment as explained in the elucidation of article 13 paragraph (1) of Law no. 2 of 1986 concerning General Courts, that the Minister of Justice is obliged to provide guidance and supervision to judges as is customary for civil servants. Daniel S. Lev has commented that Indonesian judges, with a few exceptions, are not sufficient to provide provisions for the independence of the judiciary, because they place judges as civil servants.
"… That Indonesian judges with a few exceptions do not tend to have a spirit of functional independence when they feel that they are civil servants, officials or have other feelings like that, namely being part of the bureaucratic layer to which high status is attached. Indonesian judges are not much different from judges in the civil law legal system. One of the implications of the role of civil servants is the patrimonial association of that role with political leadership, where it is against the will of the leaders that, in addition to other grounds, has overcome the independence of the judiciary. Whatever the influence of the day-to-day responsibilities of the Ministry of Justice, this influence is symbolically important as a reminder of the conceptually limited autonomy and direction of loyalty of the judiciary. "

Regulations and institutional practices of judicial power after amendments to the 1945 Constitution
The regulation and practice of judicial power have changed significantly since the 1998 reform which had implications for the amendments to the 1945 Constitution (1999)(2000)(2001)(2002). Article 24 of the 1945 Constitution, which normally regulates simply the power of the judiciary, after the amendment is more complete it is formulated with a desire to strengthen the position of the judiciary in exercising judicial power freely and independently. Below the authors present in a table form how the differences in the norms of Article 24 before and after the 1945 Constitution: Table 1. The differences in the norms of Article 24 before and after the 1945 Constitution

After the 1945 Constitution
Article 24.
(1) The power of the Judiciary shall be exercised by a Supreme Court and other judicial bodies according to the law.
(2) The composition and power of the judicial bodies shall be governed by law.
Article 24 (1) The power of the judiciary is the free power to administer the judiciary in order to uphold the law and justice.
(2) The power of the judiciary shall be exercised by a Supreme Court and the judiciary under it in the general judicial environment, the context of religious justice, the military judicial environment, the state administrative judicial environment, and by a Constitutional Court.
(3) Other bodies whose functions are related to the power of the judiciary shall be stipulated in the law. Article 24 A (4) The Supreme Court shall be authorized to adjudicate at the cassation level, test the laws and regulations under the law against the law, and have other authority granted by law.
(5) The supreme court justice shall have integrity and personality that is unimpeachable, fair, professional, and experienced in the field of law.
(6) The supreme court nominee shall be proposed by the Judicial Commission to the House of Representatives for approval and subsequently appointed as chief justice by the President.
(7) The Chairman and deputy chairman of the Supreme Court are chosen from and by the supreme court.
(8) The composition and position, membership, and procedural law of the Supreme Court and the judiciary under it are governed by law.
Article 24 B (1) The Judicial Commission shall be independent in its authority to propose the appointment of a supreme court justice and have other authority in order to maintain and uphold the honor, dignity, and conduct of the judge. Article 24 C (5) The Constitutional Court shall be authorized to adjudicate on the first and last level whose decisions are final to test the law against the Constitution, to decide on disputes over the authority of state institutions whose authority is granted by the Constitution, to break the dissolution of political parties, and to decide disputes about the results of elections. The appointment and dismissal of contingency judges, the law of events and other provisions of the Constitutional Court shall be governed by the Law.
Amendment to article 24 of the 1945 Constitution can be interpreted as strengthening judicial institutions to exercise independent judicial power in upholding law and justice, although this has been clearly stated in the formulation of article 24 which was before the amendment, but the statement of an independent judicial power "can only be found in the explanation of the article. . In addition, the amendment to this article has presented two state institutions, namely the Constitutional Court (MK) and the Judicial Commission (KY) which can assist and strengthen the Supreme Court.
Consequently, the reform of the judicial power institution as stated in the constitution must be followed by the independence of the judge who is the main actor or key figure in the key person. Therefore, the law on the principles of judicial authority needs to be changed according to the mandate of the constitution, as well as the law which regulates the independence of judges in both the Supreme Court and the Constitutional Court.
To realize the steps to improve judicial power after the amendment of the 1945 Constitution, Law No. 14 of 1970 concerning the Principles of Judicial Power was amended. UU no. 35 of 1999 is a law that was first formed to reform judicial power based on Law 14 of 1970, but the amendments to this law were only limited to transferring organizational, administrative and financial control of the judiciary to become under the authority of the Supreme Court. As stated in Article 11 of Law 35/1999 which reads: Judicial bodies as referred to in Article 10 paragraph (1), are under the authority of the Supreme Court organizationally, administratively and financially.
Furthermore, to reform the total governance of the judiciary, a new law on the principles of judicial power was carried out, namely Law no. 4 of 2004 concerning Judicial Power. In this Law was born to replace Law no. 14 of 1970 as amended by Law no. 35 of 1999. This is a consequence of adjustments to the amendments to Article 24 of the 1945 Constitution, which states that the administrators of judicial power are carried out by two judicial institutions, namely the Supreme Court (MA) and the Constitutional Court (MK). And each of these institutions (MA and MK) is then regulated more specifically by a law. And now the law on judicial power has been replaced by Law no. 48 of 2009, which in its preamble states that in order to realize an independent judicial power and a clean and authoritative judiciary, it is necessary to organize an integrated judicial system. And Law no. 4 of 2004 concerning Judicial Power is no longer in accordance with the development of legal and constitutional needs according to the 1945 Republic of Indonesia UUD. The author, observes at a glance that the birth of Law no. 48 of 2009, one of which is to regulate the existence of the Judicial Commission as a new state institution as a result of the amendment to Article 24 of the 1945 Constitution which functions to uphold the honor, dignity and dignity of the judiciary, through supervision of judges who violate the professional code of ethics of judges.
Supervision of the code of ethics of the judge profession is imperative to maintain the independence or independence of the judiciary, judges are the main actors who can blacken law enforcement and justice by the judiciary in the midst of social, national and state life. Although judicial institutions (MA and MK) have been formally placed in our state administration, have become independent (independent), free and independent institutions apart from the influence of extra judicial powers, this will not mean anything at all if the judges carry out their duties and powers. In a case settlement, there is still an attitude that diminishes the value of integrity and credibility of judges by violating legal norms and professional ethics of judges.

Conclusion
The rule of law in the concept of rechtstaat, rule of law, and socialist legality, has signaled and required the existence of a judicial institution that is free and independent apart from the influence of powers outside the extra judicial judiciary. Thus, Indonesia, which states itself in its constitution as a rule of law, consequently must present a truly free and independent judiciary. Article 24 of the 1945 Constitution which principally regulates the provisions on Judicial Power, it turns out that before the 1998 reform, the regulation and implementation of the judicial power law did not position the judicial power freely and independently. Mainly during the time of President Soekarno , he clearly used the power of the president to intervene in the processes and decisions of the judiciary. The main instrument used is Law no. 19 of 1964 and Law no. 13 of 1965. During the reign of President Soeharto , he has succeeded in revising the judicial power law that was used during the reign of President Soekarno. The results of changes to the law on judicial power under President Soeharto gave birth to Law no. 14 of 1970, but the judicial power exercised by the judiciary (Supreme Court) based on this law is only formally positioned free and independent apart from the influence of executive power, but materially, namely control of the careers and finances of court judges is still under the executive power. . The renewal of judicial power after the amendment to Article 24 of the 1945 Constitution, significantly changed the judicial system, which was previously only played by the Supreme Court. The presence of the Constitutional Court and KY is a strengthening of the judiciary so that it can fulfill a sense of justice for the community.