THE URGENCY OF CONCEIVING PANCASILA AS POSITIVE LEGAL SOURCE IN INDONESIA

ABSTRACT : Pancasila is so far known as grundnorm in Indonesian legal order and legal norm system. It hasan implication to law enforcement in judicative field in Indonesia as governed in Article 2 clause 2 of Law No.48 of 2009 on Judicial Power stating that the state judicature applies and enforces the law based on Pancasila.This article aims to study the misconception of Pancasila theory as grundnorm and the urgency of conceivingPancasila as the source of Indonesian positive law. Considering the result of research, it can be seen that theconception of Pancasila as grundnorm theoretically and historically is affected by western-style legal education.Called as grundnorm and staatsfundamentalnorm, the position of Pancasila is beyond the constitution andtherefore Pancasila is detached from the 45 Constitution (UUD 45). Pancasila becomes abstract, is onlypresupposed and not a positive law, while in fact the principles of Pancasila are contained in the Preamble of1945 Constitution. The author argue that actually Pancasila is a positive law and a basic norm of constitution.Pancasila contained in the Preamble of UUD 1945 is instead established and is natural law because of itscharacter as the source principles to legal products below it. The urgency of conceiving Pancasila as the positivelaw enacted in Indonesia is related to the judge in deciding a case implementing Pancasila to bring the justiceinto reality.

KEYWORDS :Pancasila, positive legal source, Indonesia