Implikasi dan Implementasi Putusan Mahkamah Konstitusi Nomor 5/Puu-X/2012 tentang SbI atau RSbI

Abstract

Constitutional Court Decision No. 5/PUU-X/2012 is very important and interesting to be studied because due to its implications and implementation. Ministry of Education and Culture as the addressat of the decision make transitional policy regarding on how to eliminate the policy concenring International Standard School/ International-Standard School Pilot Project (SBI/RSBI). In fact, transitional policy is not addressed and does not have a legal basis in the implementation of the decision. There is a conflict between the normative provisions that Constitutional Court Decision are binding since pronounced in an open session for the public with the certainty of cross-state agency collaborative cooperation to implement the Court Decision. Therefore, there’s a need to investigate this Decision at the practical leve on how the decision is implemented. This research is doctrinal in which the object of the research is laws and regulations and other legal materials, in this case, the Constitutional Court Decision No. 5/PUU-X/2012. In addition, field studies are also conducted by way of searching mass media news which is important to be done in order to know the response of the public on how to implement the Constitutional Court Decision No. 5/PUU-X/2012. The results showed that (1) the implications of the Constitutional Court Decision No. 5/PUU-X/2012 is that it eliminates the legal basis of RSBI policy. Consequently , the implementation of SBI/ RSBI should be stopped because it has lost its legal basis since the judgment is pronounced. In addition, the Government through the Ministry of Education and Culture, shall implement the decision, including to repeal or revise the technical regulations that become legal framework of RSBI, (2) The implementation of the Constitutional Court Decision No. 5/PUU-X/2012 can be seen in two categories, namely: (a) spontaneous implementation, which is implementation by some education authorities and the schools themselves by removing the attributes of SBI/RSBI shortly after the Constitutional Court’s decision was pronounced, without waiting for further instruction by Ministry of Education and Culture, and (b) a structured implementation through the Ministry of Education and Culture by issuing Circular of Minister of Education and Culture No. 017/MPK/SE/2013 about RSBI Transition Policy. Although this policy is contrary to normative-imperative provisions, the measure taken by the Ministry of Education and Culture to establish a transition policy is the most probable step taken in order that the Constitutional Court Decision No. 5/PUU-X/2012 can be implemented as it should be.

The Position of the Letter from the Chief of the Supreme Court and the Decision of the Constitutional Court in the Polemic on the Advocate's Oath

“…However, the decision must certainly be confirmed or justified through legal considerations which describe the judge's reasoning regarding the process of interpreting facts and law, based on evidence submitted and debated by each party. (Laksono, 2018) .…”

The Legal Power of the Constitutional Court Decisions Remains

“…As a constitutional judicial institution, the constitutional court has several special characteristics that are different from the general judiciary. This specificity lies in the constitutional court's decision which is permanent and applies to the principle of erga omnes (F. L. Soeroso et al, 2013). The permanent nature of constitutional court decisions gives rise to several legal consequences that must be obeyed like laws.…”

Solutions for Follow-Up on Constitutional Court Decisions That Are Final and Binding Implementative

“…(1) The Constitutional Court has the authority to try at the first and final levels whose decisions are to review laws against the Constitution, decide on disputes over the authority of state institutions whose powers are granted by the Constitution, decide on the dissolution of political parties, and decide on disputes over election results. (2) The Constitutional Court is obliged to give a decision on the opinion of the DPR regarding alleged violations by the President and/or Vice President according to the Constitution. Derivatives of the constitutional mandate can be seen in Article 10 paragraph (1) of Law Number 24 of 2003 concerning the Constitutional Court.…”

“…Article 47 of the Constitutional Court Law also emphasizes the final character by stating that the decision of the Constitutional Court has permanent legal force since it is pronounced in a plenary session which is open to the public. From these provisions, the nature of the final shows at least three things, namely (1) that the decision of the Constitutional Court directly obtains legal force; (2) the decision of the Constitutional Court has legal consequences for all parties, not only for related parties; (3) because it is the first and last trial. 1 10.30596/nomoi.v%vi%i.14945…”

“…The legal consequence of the provisions mentioned above is that the decision of the Constitutional Court has clear and firm juridical consequences, and no further legal remedies can be taken since the decision has been pronounced in a hearing open to the public. 2 Based on this explanation, what can be drawn is that there is no other choice but to consistently implement the Constitutional Court's decision. Moreover, the Constitutional Court decision applies the Erga Omnes principle , which means that the decision is not only binding on the parties litigating at the Constitutional Court, but also binding on all Indonesian people.…”