What is the meaning of legal certainty? This question requires an answer about the definition of legal certainty. The word legal certainty appears in the constitution.
Article 28D paragraph (1) of the 1945 Constitution of the Republic of Indonesia which reads: "Everyone has the right to recognition, guarantees, protection, and legal certainty that is just and equal treatment before the law".
If we re-learn about legal certainty. So we can divide it into two, namely certainty and law. If we refer to the Big Indonesian Dictionary (KBBI):
certainty comes from the word for sure. For sure, according to KBBI, it is fixed, cannot be or must be. Meanwhile, certainty is a matter of certain (condition), provisions, provisions
Meanwhile, legal certainty according to the KBBI is a legal instrument of a country that guarantees the rights and obligations of citizens.
Some legal thinkers explain this legal certainty. For example, a lecturer in political science and law from Germany, Gustav Radbruch, said that legal certainty is certainty about the law itself.
Thus, there are basic things with regard to legal certainty. Gustav Radbruch explains these four things as follows:
First, that law is positive which means that it is in the form of statutory regulations.
Second, the law is based on facts or based on reality.
Third, legal facts must be formulated in a clear manner in order to avoid confusion in meaning, besides being easy to implement.
Fourth, positive law cannot be easily changed.
Director of the Van Vollenhoven Institute for Law, Governance and Development, Prof. Dr. Jan Michiel Otto is of the opinion that if the substance of the law is in accordance with the needs of society, then legal certainty can be achieved.
This thought of Jan M. Otto is called real legal certainty or realistic legal certainly. However, as quoted by Sidharta (2006: 85), there are several conditions that must be met to achieve legal certainty, including:
- There are clear or clear, consistent and accessible legal rules issued by the state power;
- Whereas the ruling (government) institutions apply the said legal rules consistently and also obey and obey them;
- Whereas the majority of citizens in principle agree with the content and accordingly adjust their behavior towards these regulations;
- Whereas independent and impartial judges (judiciary) apply these legal rules consistently when they resolve legal disputes; and
- Whereas the judicial decisions are concretely implemented.
Several other legal experts who explain legal certainty are:
Sudikno Mertokusumo (2007: 160)
Legal certainty is a guarantee that the law is enforced, that those who are entitled according to law can obtain their rights and that decisions can be implemented. Although legal certainty is closely related to justice, law is not synonymous with justice. Law is general, binding everyone, generalizing, while justice is subjective, individualistic, and not generalizing.
Fernando M. Manullang (2007: 95),
Legal certainty is the implementation of the law according to its sound so that the public can ensure that the law is implemented. In understanding the value of legal certainty that must be considered is that this value has a close relationship with positive legal instruments and the role of the state in actualizing it in positive law.
Nusrhasan Ismail (2006: 39-41)
argues that the creation of legal participation in statutory regulations requires requirements with respect to the internal structure of the legal norm itself. The internal requirements are as follows: First, the clarity of the concepts used. Legal norms contain descriptions of certain behaviors which are then incorporated into certain concepts as well. Second, the clarity of the hierarchy of authority of the statutory regulatory agencies. The clarity of the hierarchy is important because it concerns whether or not it is legal and whether it is binding or not. Clarity of hierarchy will provide direction for lawmakers who have the authority to form certain laws and regulations. Third, there is consistency in statutory legal norms. This means that the provisions of a number of laws and regulations relating to one particular subject do not conflict with one another. Legal certainty requires efforts to regulate the law in legislation made by an authorized and authoritative party, so that the rules have a juridical aspect that can ensure certainty that the law functions as a regulation that must be obeyed.
Lon Fuller in his book the Morality of Law (1971: 54-58)
propose 8 (eight) principles that must be fulfilled by law, which if not fulfilled, then the law will fail to be called law, or in other words there must be legal certainty. The eight principles are as follows: (1) A legal system that consists of regulations, not based on heretical decisions for certain matters; (2) The regulation is announced to the public; (3) Not retroactive, because it will damage the integrity of the system; (4) Made in a formula that is understood by the public; (5) There must be no conflicting regulations; (6) Must not demand an action that exceeds what can be done; (7) Should not be changed frequently; (8) There must be a match between the rules and daily implementation.
Cikini, Menteng, Jakarta Pusat
January, 27, 2021
Member of KSI Chapter Jakarta
