CHARACTERISTICS OF DEMOCRACY IN ESTABLISHMENT CONSTITUTION

Instrument (tool) democracy in the legislation making process that can be implemented are information disclosure, public participation and complaint mechanism. In general instrument (tool) democracy in the legislation making process has been fulfilled but still in a limited scale, in the form of disclosure (information), public participation, and the complaint mechanism. The most dominaty of the instrument (tool) democracy in the legislation making process is Public Participation; Although the public participation are accommodated, but the problem involvement or participation is still more of a procedural nature and the artificial, yet touched on aspects of fundamental and substantial; In the second process of legislation making process, Public Participation are dominated by a particular group mobilization approach is more power and influence than any form of individual consciousness. Using theoretical models of participation of South Africa, then participation in Indonesia over the model called A Model of Public Participation Realism. According to this model, the participation of actors tend to do and dominated by interest groups and particural organizations. Here there is a tendency to understand the «public» in the context of limited on the grounds that the public as a whole may Numbert be involved in the process of legislation making process. Especially in the context of the formation of Horticulture Act, it is clear how participation is only carried out by groups or organizations exist of group interest organization.


Introduction.
The first amendment of the constitution of the republic of Indonesia, has changed the power of formulating laws, from what was originally held to the President, turned to the authority of the House of Representatives. Structuring the implementation of the legislative function of the House of Representatives, will certainly have an influence on the quality of law formation in Indonesia. Measures toward the formation of a higher quality law, part of an effort to support legal reform, have been realized through a national legislation program. Such improvement efforts involve the formation process (formal), as well as the regulated substance (material). Such a move is expected to provide assurance that the established legislation is able to accommodate rapid needs in the implementation of development. 1 The law is the legal basis under which all policies that the government will adopt. 2 The «legal policy» set forth in the law, becomes a means of social accounting, which contains the policy the government seeks to direct people to accept new values. As a form of embodiment of the provisions of Article 22 A (the result of the second amendment), which states that the procedure for the formation of law, hereinafter regulated by law, has been enacted Law Number 10 of 2004 as has been replaced by pertaining to regional interests, are still faced with several problems.
In this connection it is important to see whether in this era of reform the state has really put forward the aspect of public participation in the formation of law and legislation in Indonesia, the public participation in the planning and discussion (law making process) is needed. Saifudin states that: Participation is a growing system in modern political systems. 5 The provision of public space or the presence of community participation is an absolute demand for democratization. 6 The quality of legislation products is largely determined by the process and mechanism of the preparation and discussion. In the process, the more intense and widespread community participation will result in improved and democratic and accommodative products of legislation to the interests of society. Therefore, it is necessary to have a standard level of public participation, both in terms of intensity, scope, media, and instruments of participation that are regulated comprehensively and in detail in the provisions of legislation on the formation of laws. Jimly Asshiddiqie states that: because people are basically sovereign in a democratic country, it is the people who have the right to determine the state policies which will be binding for all the people. 7 There is often a draft law approved by the People's Legislative Assembly to become law, then passed and enacted by the President, but is immediately criticized sharply that the law needs to be revised. For example, to illustrate this, Law Number. 23 of 1997 on the Management of the Environment, immediately received a «verdict» of revision, immediately after it was enacted. 8 Other issues can also be revealed, such as  On another occasion, the president also reap criticism. As a result of his «weak» position in the legislation process, after the constitutional amendment, it seems that at some point the president is reluctant to put his signature on a bill already approved by Although such mechanisms are regulated in the 1945 Constitution, but as a consequence of a joint discussion between the president and the House of Representatives, in a plenary session of the House of Representatives, the president has no reason not to endorse an approved Bill. As a result, the law was forced to be put into the Gazette without the approval or signature of the president, in relation to the president who has no veto rights over the law.
Given the various conditions and legal issues that arise after a law is established and declared effective, it may be necessary to develop an integrated regulatory plan, between various similar laws, as well as with other interrelated legislation.
The various phenomena above illustrate that, the formation of law is not only limited to carry out formal process and based on the principles of the establishment of good legislation, but also must consider the existence of public participation in the process of formation of the Act, so the quality of legislation which is formed more democratic and in accordance with the desired.
For this reason the topic of democratic characteristics in the formation of legislation is worthy of study. The study focused on the issue of 1). What form of democratic instrument in the formation of law? 2). Whether in the process of formulating the law has fulfilled the instruments of democracy?
This study is a normative legal study conducted through literature study or library research, using conceptual approach and statute approach. The legal materials used are primary, tertiary, and secondary legal materials.

A. Democratic Instruments in the Formation of the Act.
In explaining the instruments of democracy in the formation of laws, a question arises why in the formation of a law must be democratic? The answer of that question is the policy formed by the government together with the Parliament which set forth in the form of legislation governing the life of the community whose validity is general and widespread that the object of the application of the content or substance of the law is the community. Since the enforceability of the law made by the government is generally applicable and widespread and its content or substance regulates the community, it is therefore necessary to involve the participation of the community to participate in the establishment of legislation in the following manner: (1). Information Disclosure; (2). Society participation; (3). Mechanism of Objection.

Information Disclosure.
Disclosure consists of guarantees of information disclosure, accountability, consensus and also freedom of expression.

Guarantees оf Information Disclosure.
Involvement and participation in the legislative process requires access and opportunities that are legally formalized to the public to obtain information about everything that happens within the parliament, especially with regard to law-making activities. Availability and access to information and community involvement in the legislation process are two interrelated issues. Decision-making in parliament is basically formally conducted in trials, therefore access to attend sessions (meetings) is an important key to community participation. This means that public hearings are an important part of the effort to create an accountable and transparent parliament. In addition, access to court proceedings, trial treaties and various public information forms the basis for broader parliamentary transparency. Thus, the guarantee of public information disclosure, the granting of access to the court and the willingness to pay attention to public inputs become the minimal preconditions for the involvement of the people in the process of legislation.
The constitution of the Republic Indonesia Article 28F provides citizens with constitutional guarantees for public information. Mentioned in the constitution that: each person shall have the right to communicate and obtain information to develop his or her personal and social environment. They also have the right to search, obtain, possess, and store information using any available channel types. 10 Human rights guarantee in the constitution of the Republic of Indonesia is a mandate to the Government and the House of Representatives to elaborate it further in various implementing legislation in order to become operative. Therefore, all information produced and about the administration of the government belongs to the people as a mandate. It is therefore appropriate that information about activities funded with public funds be public information as well. This 8 out its public role; (ii) the right to obtain information; (iii) the right to engage and participate in the process of public policy formation; (iv) freedom of expression which, among other things, is manifested in the freedom of the press; and (v) the right to object to the rejection of all four prior rights. Guarantee of involvement in the making of the Act is not only given to individuals / groups but also the mass media.

Accountability.
The issue of accountability in the formation of a law is an inseparable requirement to create Good Governance through the product of the law in the context of the administration of the State.
With regard to this accountability, Starling provides the definition of accountability is as follows: A good synonim for the term accountability is answerability. An organization must be answerable to someone outside itself. When things go wrong, someone must be held responsible. Unfortunately, a frequently heard charge is that government is faceless and that, consequently, affixing blame is difficult. 12 From the above formulation, starling asserts that accountability is a willingness to answer public questions. 13 Public questions in the context of accountability imply a liability to various policies and public services. Thus, this accountability is a Condition Sine Quanon for an official 14 or an office environment 15 in a democratic State. For, in essence, the power inherent in a position or an office environment in a democratic country is from the people, by the people, to the people and run with the people.
On the basis of the above understanding, it is related to this question of accountability. Jimly Asshiddiqie discloses 7 kinds of accountability concepts of a public office, namely: (1) spiritual accountability, is a form of accountability committed 12 Starling was quoted by Kumorotomo in the accountability of the public bureaucracy: a sketch of the transitional period in saifudin, Ibid., h. 69. 13 Ibid. 14 Officials shl be persons entrusted with the position of the State to act as the duties and functions of the State which shl account for its powers individually, such as the President, Vice President, Minister, Governor, Regent, etc. 15 The office environment is a work environment consisting of State officials performing the duties and functions of the State and shl be accountable collectively on behf of the institution, for example: the People's Consultative Assembly, the People's Legislative Assembly, the Regional Representative Council and the judiciary. in the context of one's religious beliefs; (2) ethic accountability, is a form of moral responsibility in performing office duties and public office environment; (3) legal accountability, is a form of accountability viewed from the legal aspect; (4) public accountability, is a form of accountability as a consequence of the existence of a democratic system adopted in a country; (5) financial accountability, is a form of liability related to finance; (6) administrative accountability, is a form of liability relating to administrative technical matters; and (7) professional accountability, is a form of accountability related to professionalism in performing its duties and functions as a state official or state official in the administration of the State. 16 Furthermore, the establishment of a law is an important step in a State which will place the supremacy of the law with The constitution of the Republic Indonesia as its foundation. Based on this law, there will be various laws and regulations as a further implementer in the administration. The emergence of these laws and regulations shall not be contrary to the law used as the legal basis.
A law occupies a strategic position in governance. The formation of legislation must be accountable to the public in order to create good legislation. The formation of legislation should be done in a transparent, participatory, and accountable manner so that it can be evaluated by the community. The formation of legislation through transparent, participatory and accountable processes is in turn expected to result in laws that are just, obeyed and provide legal certainty. Through the establishment of good legislation, the arrangement of community life, nation and state will lead to the creation of a clean government that is effective government plus Numbern aburies decision-making: governance by rule, accountability, transparency and participation. 17 Thus, the issue of accountability in the formation of a law is a necessary way to produce an ideal law product.
The holders of legislative powers do have the authority to enact legislation in 16 Jimly Assiddiqie dalam Saifudin, partisipasi publik dalam pembentukan peraturan perundang-undangan. Ibid.  10 accordance with the provisions given by the constitution. thus the legislative power holder basically has the freedom to make the law as he wishes. However, in a democratic State accountability in the formation of this law is very important, given that in the end the people will be affected by the enactment of a law.

Consensus.
In the discussion of consensus or agreement it is related to the existence of «agreement» of the people to carry out the obligations and bear the consequences caused by the relevant legislation. This is because the establishment of legislation should be regarded as a first step towards achieving the goals agreed upon by the government and the people. As suggested by A. Hamid S. Attamimi, the establishment of legislation should be considered as a first step towards achieving goals «mutually agreed upon» by the government and the people. 18 In such a sense, the consensus should involve the community in the process of preparing and discussing the draft law to be drafted, so that the desired objectives can be achieved. 19 Furthermore, A. Hamid S. Attamimi also said that, in Indonesia the consensus can be realized with: «good planning, clear, and open, known to the people about the consequences that will arise and the background and goals to be achieved. It can also be done by spreading the draft laws to the public before its formation. Of course, in addition, if the legislation in question is a law, its deliberations in the House of Representatives can be done by involving as many people as possible through institutions with opinions that we have long had». 20

Freedom оf Expression.
Discussion on freedom of expression, related to public freedom in participating in the process of formulating legislation. The way that can be done in participating is poured in the form of freedom of opinion is through 2 (two) ways that is by formal and 18    12 community in order to support, reject or suppress the material being discussed in the process of forming the law. However, the influence of this demonstration will be more successful in influencing the legislature if it is carried out by the people directly concerned, with a large and continuous number. This demonstration is an expression of the individual's freedom of citizens for their interests which will be regulated in a law.
So, this demonstration can not only be regarded as a wind and in the process of forming the law.

b. Proposals And Inputs Through Print Media
Public participation in the form of suggestions and input through print media can be done by the public by making an opinion on a problem being discussed in the legislative body. This public opinion can be articles, press conferences, interviews, statements, or news headlines from newspapers and magazines. Public participation through the print media is widely done by the community, because the way is relatively practical when compared with other forms of community participation. This means that the perpetrators of community participation will not lose much time to do so.
However, the form of public participation through this print media, has a weak side of the opinion submitted is not necessarily up to the hands of authorities to discuss a Draft Law. Therefore, in addition to submitted to the print media should be sent to the House of Representatives either through the post or email so directly accepted by the completeness of the House of Representatives which was discussing a Draft Law.

c. Proposals And Inputs Through Electronic Media
Public participation in the form of input through electronic media can be done by the community by creating a dialogue by presenting competent resource persons to a problem being discussed in the legislature. Dialogue through electronic media has a wide range and can encourage people to participate in discussing issues that concern the wider community. Therefore, public participation in the form of electronic media needs to be encouraged in the process of formulating the law so that it will awaken the public about the rights and obligations that will be regulated in the law. Public Participation. Community participation is defined as the participation of the community, either individually or in groups, actively in the determination of public policy or legislation. 21 As a concept developed in the modern political system, participation is a space for people to negotiate in the process of policy formulation, especially those that directly impact people's lives. Saifudin states that: Participation is a growing system in modern political systems. 22 The provision of public space or the presence of community participation is an absolute demand for democratization. 23 Saldi Isra in his book entitled the shifting function of legislation states that, community participation is defined as the participation of the community, both individually and in groups, actively in the determination of public policy or legislation. 24 Mas Achmad Santosa further states that participatory public decision making is useful in order that the decisions truly reflect the needs, interests and desires of the wider community. 25 Associated with the formulation of legislation, while giving space to the public to know early possible the implications of the formulation of legislation, public participation is needed to ensure that the interests of the community are not ignored by legislators.
In connection with Yuliandri's public participation by citing the opinions of Samuel P.
Huntington and Joan M. Nelson states that: public participation becomes one of the tools in pouring the values that evolve in society to be poured in a regulation. 26 Lothar Gundling presents several reasons for the need for public participation in the preparation of a policy, that is: 27 3. supplementing judicial protection;

democratizing decision-making.
Community involvement in the drafting of the Law covered under the meaning of transparency and accountability is that the decision-making process is conducted openly, where the argument of consent or claims on a plan of the Act is conducted in consultation and with the public's knowledge. Furthermore, the existence of community participation has led to a prolonged debate between two opposing and pro-democratic groups with community participation. According to R.B.Gibson, the disagreeing group survives on the basis of elite democracy theory which, while agreeing to community participation, survives on the basis of participatory democracy, 28 In view of elite democracy theory explains that:     legislation. In fact, protests can also be made against the existence of new laws in accordance with the wishes of the community. Therefore, this demonstration is a form of public participation in the process of forming laws, especially protests that refuse because it will encourage refinement or replacement with a better law. 35

Demand of Testing Against the Act.
A law that has been produced by the legislature and has been ratified by the In the previous explanation it has been explained that the instruments of democracy in the formulation of the law are characterized by the disclosure of information, the participation of the community, and the mechanism of objection. To find out in this study the authors will review 2 (two) laws as an example that the two laws have met the instruments of democracy. The laws that will be the author of review in this study is law number 44 of 2008 on Pornography and Act Number 13 of 2010 on Horticulture. The reason the authors review the two laws in this study, because the process of formation of the law is a lot of controversy in the sense that there is a pro and there is a counter to the legislation in the two laws in the community.

Information Disclosure, Community Participation and Objection Mechanism in the Establishment of Law Number 44 Year 2008 on Pornography.
In     Year 2010 About Horticulture, the participants of participation are more dominated by certain groups who use the mobilization approach of strength and influence rather than the form of individual consciousness.