RULE OF LAW IN THE EYES OF EUROPEAN CONSTITUTIONALISM: LESSONS FOR INDONESIA

Abstract

After the pre-independence struggle of identity, Indonesia was set to become a country that would be based upon rule of law, a concept that they first clarified to be taken from the German concept of ‘rechtsstaat’. However, while rule of law in both German and European sense has evolved, Indonesian case laws shows that Indonesia has dismissed the practical application of rule of law and suppress it into a philosophical tagline. Meanwhile, the founding countries had gone so far as to place a theoretical test to assess whether ‘rule of law’ countries truly implements rule of law. Such as through: (1) public institution’s subjection to law, (2) the principle of statutory reservation, (3) the principle of effective legal protection, (4) principle of proportionality, and (5) state liability for illegal acts. Comparing European country practices and Indonesian practices, we see that Indonesia’s application of rule of law has not been adequate for the country to claim the concept as its basis.