Philosophical Validity, Theoretical, Normative and Empirical Paradigm of General Principles of Good Governance (Aupb) as a Review of Presidential Impeachment

Nadir Nadir • Soedarsono Soedarsono • Jazim Hamidi • Muchamad Ali Syafaat
Journal article Brawijaya Law Journal • 2017 Indonesia

Abstract

Philosophical validity showed of the Principles of Good Governance (AUPB) as A review to Presidential impeachment, is a principle of AUPB that contains ethical normative values used as the foundation of good governance, clean and respectable, moreover to complement the shortcomings and ambiguities in law. Technically, the application of AUPB by the judges of the Constitutional Court (MK-RI) can be approached through induction and deduction legal reasoning. The method of implementing AUPB by the judges of the Constitutional Court (MK-RI) is accomplished by deductive at first, meaning that the special rules is focused more to the certain field of law, then these are deducted based on its basic rules and deducted again into the rules of substantive, and deducted again into the rules of cases. After that, it starts to applicate the rules of case based on the concrete case by the judge, because of the nature of the judges of the Constitutional Court (MK-RI) is kholifah fil'ardi as the representative of God on earth to uphold the law and justice. While theoretically AUPB is valid, the judge ius curia Novit as a verdict maker to perform legal discovery (rechtsvinding). Empirically AUPB is valid, it can be seen from the cases of impeachment against the President of the United States William Jefferson Clinton, on suspicion of "abominably act" (misdemeanors). Additionally, AUPB empirically has been tested through jurisprudence since Amtenarenwet 1929 officially applied on March 1, 1933. Centrale Raad van Beroep, in his verdict on June 22, 1933, and the jurisprudence verdict of Hoge Raad on November 13, 1936, and the jurisprudence verdict of Hoge Raad 1919. While the normative validity is based on the leading legal doctrine, that AUPB is positioned as the unwritten laws that must be obeyed by the government, and AUPB considered as a part of positive law. Moreover, in Indonesia AUPB incarnates in various legislations even though his name is remained as principal.

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Journal

Brawijaya Law Journal

Brawijaya Law Journal (BLJ) is an international journal established by the Law Faculty of Brawija... see more