Universitas Islam Negeri Alauddin Makassar Proceedings, The 1st International Conference on Science and Islamic Studies (ICOSIS-2023)

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The concept of power division in the legislative process in Indonesia from the fiqhi siyasah dusturiyah perspective
Muhamad Syarif As’ad, Misbahuddin Misbahuddin, Andi Intan Cahyani, Muhammad Jauhari Mis’yan

Last modified: 2023-09-05

Abstract


The fiqh siyasah dusturiyah does not emphasize rigid formats and mechanisms in formulating laws. Its primary focus lies in state administration's principles and core tenets: justice, equilibrium, consultation, and public welfare. The research aims to find the siyasah dusturiyah perspective in the construction of power division, the dynamics of power division, and the active participation of society in forming laws. The study employs a literature review with a normative legal research approach that examines and assesses normative rules related to the values and principles of siyasah dusturiyah. The research findings indicate that Indonesia is a sovereign state governed by the principle of the people's sovereignty, based on the principle of divinity. The formation of laws follows the model of the division of power known as trias politica. Each branch of power possesses authority concerning this matter. Certain aspects of the legal construction of power division equate to the fundamental principle of siyasah dusturiyah. However, several critical observations highlight the incomplete reflection of the values of popular sovereignty and the divine. The practice of power struggles among political and economic elites continues to influence decision-making processes in the formulation of laws. After the amendments to the 1945 Constitution of the Republic of Indonesia, the House of Representatives (DPR), Regional Representative Council (DPD), and President are responsible for exercising legislative powers. This division of power deviates from the pure theory of trias politica as it grants the President a more significant role in the legislative process, thereby diminishing the essence of the DPR's authority as the holder of legislative functions. Furthermore, an imbalance in authority between the DPD and DPR during the legislative process has made the DPR a "super parliament" institution. Consequently, the role of the DPD as one chamber within the parliament is subordinate to the superiority and dominance of the DPR in all legislative functions. From a siyasah dusturiyah perspective, many aspects still do not fulfill the principles of justice, balance, musyawarah (consultation), and the principle of maslahat (benefit). This research implies that it needs to strengthen the roles and functions of institutional bodies among state institutions to ensure equality and equilibrium in the formulation of laws.


Keywords


Trias politica; formation of law; power division; siyasah dusturiyah

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