REVIEW OF INDONESIAN CONSTITUTIONAL COURT DECISION NUMBER 21-22/PUU-V/2007 BASED ON THE INCLUSIVE LEGAL THEORY

This Sovereignty and liberalization are often considered opposites. This resistance is caused by differences in the interests of the two instruments. The object of this research is the Constitutional Court Decision Number 21-22/PUU-V/2007 about judicial review of the UUPM. This study aims to review the Constitutional Court Decision based on The Inclusive Legal Theory. It addresses the research question: What is relevance of The Inclusive Legal Theory in analysing the Constitutional Court's Decision? This study uses normative legal research, which examines the Constitutional Court Decision and the UUPM. The results show that the Constitutional Court sought, in its decision, to bridge the gap between liberalization and sovereignty by returning to the interpretation of the 1945 constitution. The mechanism of legal proceedings in the Constitutional Court is still relevant to elements of the Inclusive legal theory.

establishment, and national treatment, as well as freedom for international financial transactions, deregulation, and privatization. 3 The main problem in developing countries is that they find it difficult make investment laws that match the country's economic goals. 4 The country is confronted with two alternative legal choices in setting investment regulations: First, the state allows investment with the principle of liberalism; or Second, the state restricts investment to protect state sovereignty. Indonesia as a developing country, experiencing the same thing in investment law-making, which can be seen from the lawsuit for judicial review of Law Number 25 of 2007 concerning investment, before the Constitutional Court. 5 UUPM is the main investment regulation in Indonesia. 6 The Constitutional Court decision examined several articles in the UUPM that were considered to conflict with the 1945 Constitution. However, overall the UUPM was considered to be constitutional. The decision of the Constitutional Court needs to be evaluated to make people understand this Court's holding. The Constitutional Court's holding is limited to determining the UUPM Articles' constitutionality but does not examine their compatibility with other instruments. This judicial review by the Constitutional Court is only based on arguments presented by the parties, witnesses, and judges' considerations on the implementation in the field. 7 For this reason, this study tries to provide a supplementary understanding of this problem using the analysis of the Inclusive Legal Theory. This theory is a new legal theory that uses several elements in analysing problems, especially investment studies.
These include openness with nonlinearity, fairness, freedom, religious aspects, international law studies, and is guided by the protection of marginal society. 8 The research problem in this research is: What is the relevance of Inclusive Legal

B. Research Method
This study uses the concept of normative legal research with a statutory and philosophical approach. This study was carried out by analysing UUPM and Constitutional Court Decision Number 21-22/PUU-V/2007 concerning judicial Review of UUPM. This study also uses a philosophical approach in exploring the norms and decisions of the Constitutional Court with philosophical instruments namely ontology, epistemology, and axiology of state sovereignty and investment.

C. Discussion and Result
The discussion in this study justifies the research methodology. This study uses conceptual analysis to answer this research question. This study will address several issues, including:

The Inclusive Legal Theory
The inclusive legal theory was established by Jawahir Thontowi. This theory intends to fill the gap of the study of law from the perspective of problematic solutions. The Inclusive Legal Theory seeks to support the development of national law by critically analysing legal norms that contain elements of injustice. The injustice which originates from legal positivism makes justice "impossible to be implemented on earth." 9 Justice is one of the objectives of the law, in addition to legal certainty and utility of the law, among which objectives the purpose of justice is the most important of these ideals. 10 So far, legal positivism has established axiology in legal certainty, by observing formal sources, namely regulations. 11 Legal certainty cannot reflect justice in people's lives, even though justice is a necessity that never dies.
Legal positivism with ius constitutum takes law far away from the values of justice.
In Indonesia, there are three legal systems that apply, namely, the Western legal system, the Islamic legal system, and the customary legal system. 12 This is a type of legal pluralism, where every law has different characteristics but has the same goals, which is justice, certainty, and utility of law.  Thontowi,Loc. Cit.,[32][33] meaning "included in it." 19 Inclusiveness is the antonym of exclusiveness, which means a way of thinking, which is textbook thinking with legal studies based on existing legal norms (linear). The Inclusive Legal Theory is an empirical legal study, which aims to expand the object of legal studies. The law is not static, but dynamically corresponds to the new era.

Liberalization versus Sovereignty
The debate between liberalization versus sovereignty began in the new era of The dimensions of globalization provide an overview of globalization supported by stakeholder from various backgrounds related to economic liberalization and an enterprise given the role as an agent in the economic order.
Economic liberalization is derived from the preference of liberal democracies. 23 Liberalism in the economic field is an understanding that is built from the concept of individualism, market mechanisms, and a limited role of the state. 24 The economic system of Liberalism originated from the idea of Adam Smith. 25  The practice of investment is controlled by Liberalism, which is the spearhead in promoting Capitalism. 30 The economic system of capitalism wants the function of the state to be limited. The state only functions as a night watchman. The state has a function to maintain and protect economic and social interests based on the principle of laissez-faire. 31 Literally, this term means "let go, let go, the world will continue to spin". This slogan is then interpreted as "let people do as they like without government intervention". 32 The greatest influence of liberalization in economic politics is its resistance to the Hill, who was quoted by Taylor in giving a categorization of PMA theory. Charles Hill analyses these three theories in terms "the free market view" (Classical Theory), "the radical view" (Dependency Theory), and "pragmatic-nationalism" (Middle Path theory). 38 The state has the absolute right to independence. It is stated that no country can interfere with the problems that happen in other countries, and no country is allowed to make war with other countries. 39 Therefore, international law is based on the principle of mutual territorial respect among nations, known as "sovereignty." Sovereignty in the traditional conception is divided into several parts. First, internal sovereignty is the highest sovereignty of the country, allowing it to regulate all people, the environment and everything in it to implement the laws and regulations that have been made by the government in the territory. 40 Internal sovereignty makes the country as legibus soluta. 41 Legibus solutus is derived from the Latin meaning "released from the laws" or in the language defined as 'of the emperor or other designated person not bound by the law. ' 42 Second, external sovereignty is the sovereignty of the state to defend its independence from attacks from other countries. External sovereignty means "As the absolute independence of one state as a whole with references to all other states". 43 External sovereignty begins with the concept of state freedom to engage in relations with other countries without any control from the other country. This aspect of sovereignty comes from the recognition of the independence of a country, giving the independent state its reciprocal sovereignty. Essentially, a state must not interfere in the affairs of other countries. The state has jurisdiction over the territory exclusively in the form of independence and sovereignty but remains charged with an obligation to international agreements if the country agrees so that the state is bound and submits voluntarily to the agreement. 44 Third, territorial sovereignty has two aspects. The first aspect is positive sovereignty, means that sovereignty is exclusively sovereign rights, and the state has the sovereign right to exploit and explore its territory. The second aspect is negative sovereignty.
Negative sovereignty is the obligation of the state not to interfere with and respect the rights of other countries in carrying out governmental activities independently. 45 Dusan Pavlovic divides sovereignty theory into two theories. The first theory is the classical theory of sovereignty. The classical theory views sovereignty as unlimited power.
The classical view judges that there are three main elements of sovereignty, namely the element of unlimited power, the element of a sovereign is power the source of all rights, and the king is the only authority element as the keeper of sovereignty. The second is the constitutional theory about sovereignty. The constitutional theory views sovereignty as something which is final but must be limited in accordance with the constitution. 46 The sovereignty of a country is not absolute but is limited with respect to the sovereignty of other countries. International law states that state sovereignty is relative. 47 International law considers that the sovereignty of the state must follow and respect international law, including respecting the sovereignty and territorial integrity of other only small parts of the global world. Globalization transcends state boundaries both ideologically and politically due to advances in technology and communication, and transportation, including the international trade system. Globalization has one goal in international trade, namely: organizing nations for a common goal, removing trade barriers to facilitate the movement of trade products both in the form of goods and services, investment, currency, and information. 50 James Bryce denies the existence of sovereignty theory. He said the theory of sovereignty is a "dusty desert of abstractions." 51 Sovereignty theory is stated as a fictional and imaginary theory. Therefore, sovereignty theory is considered a dangerous concept, giving rise to mere power-based governance, and sovereignty theory is a barrier to the growth of international trade. 52

Meeting Point Between Liberalization and State Sovereignty: Implication of The Constitutional Court Decision Number 21-22/PUU-V/2007
The This consideration shows the attitude of the Constitutional Court in support of broad statutory interpretation, namely: the purposes of the law in the future (prescriptive). The non-linear element used by the Constitutional Court justices in this interpretation, by offering interpretations that are not only textual but contextual. Open thought of its implementation is required to make these decisions more meaningful and fulfil the spirit of justice.
Article 33 has the ultimate goal of creating the greatest prosperity of the people. The phrase "the greatest prosperity of the people," in Article 33 the UUD 1945 must be understood, not only in physical context, but also in the dignity of the nation so that it is able to stand in line with other nations and able to become the authority in their own country. 55 Therefore, the state as the holder of the right to control the state is not meant to be owned by the state itself but is bound to the purpose in giving that right, to be used for the greatest prosperity of the people.
The principle of economic democracy in Article 33 which covers the principles of togetherness, fairness of efficiency, sustainability, environmentalism, independence, and the balance of progress and national economic unity must also be interpreted as an economic democracy that continues to change and develop so that economic democracy must not only be bound at a certain time. This interpretation was used by the Constitutional Court in interpreting the articles in the UUPM.
In general, decisions regarding state sovereignty are interpreted broadly, so long as the government is still in control of investment. This statement is proven by regulation, among others, first, "by still taking into account national interests," and second, the state statement determines what is permissible, and not merely the will of the capital owner.
Third, there are a number of obligations and responsibilities imposed on investors. Fourth, there is a provision that the Government can stop or cancel the granting and extension of land rights. Fifth, there are provisions in which the Government, based on the law, is possible to carry out acts of nationalization or expropriation of ownership rights. Sixth, there is a provision that the Government can terminate the agreement or contract of cooperation. This is the standard of state sovereignty explained by the constitutional court in its decision. 55 Ibid 274.

The problems of liberalization and state sovereignty raised in this Constitutional
Court decision include equalizing FDI and Domestic Direct Investment (DDI). 56 This regulation is alleged to contain elements of liberalism that emphasize the principle of nondiscrimination between FDI and DDI. This equal position, however, is contrary to state sovereignty. Legal considerations related to this equality action are considered by the Constitutional Court not to contradict the UUD 1945 due to several reasons. First, the principle of accountability. This principle that orders companies to be accountable for their business activities, encapsulated in the phrase "keep in mind national interests," the existence of closed or open business field instruments with requirements, obligations and responsibilities of the company, and stopping or cancelling the grant of rights to land, and supported by the principles of economic democracy as a form of state obligation to provide protection for people's rights. 57 Additionally, the Court invoked the principle of equality in business and the principle of economic democracy. 58 This is the contextual interpretation applied by the Constitutional Court, interpreting sovereignty by not being bound in one legal term, but must be considered in its entirety.
Second, the Court considered the freedom to transfer assets, 59 the right to transfer, and repatriation of assets in foreign currencies. 60 These privileges will provide uncertainty in guarantee of employment and continuation of the business. 61 The Constitutional Court believes that protection of human rights is absolutely necessary. The state cannot prohibit the ownership of one's assets, including legal entities. Otherwise, it will conflict with human rights. This provision is controlled by the obligation to report and fulfil the state's rights to taxes and royalties, the implementation of laws that protect creditors' rights, and the implementation of laws to avoid state losses.
Third, all types of businesses are exposed. 62  unconstitutionality in the formulation of norms for opening business fields because the term "controlled by the state" does not always mean "owned by the state". An important issue in this problem is the principle of "openness of the business sector". The government requires a lot of legislation to cover certain business fields including its arrangements in the DNI. Similarly, if the closed principle is prioritized, the government needs a lot of rules to open its markets. The essence of this problem is the mechanism of government oversight of investment. With the open principle, the government does not focus on supervising investments made, but with the principle of "closure", it will make the government focus more on regulations that opening its markets to foreign investment. This regulation of openness and closure also has an impact on state sovereignty as stated in the Constitution of 1945, even though the Constitutional Court states that it is not. The Constitutional Court believes that the use of the phrase "extended at once" is of value contrary to the Constitution of 1945. This principle must be determined by the government in implementing investment, since giving facilities that exceed the fairness will result in the loss of state sovereignty.

Relevance of the Inclusive Legal Theory in the Constitutional Court's Decision
Number 21 Theory. However, in this study related to decision material, the principle of the Inclusive Legal Theory was used in decision making. It is seen that the constitutional court ignore the problem of the impact caused by capital liberalization. This aspect escapes the ruling of decisions in the constitutional court ruling. Even though this aspect is important to explore by the Constitutional Court, the Constitutional Court should not stop in matters of dialectics and logic alone but must explore the real values that occur in society, even though it is casuistic and has no broad impact. The principle of the Inclusive Legal Theory is to explore the truth and real justice so that legal problems can be found in long-term solutions.

D. Conclusion
Based on the formulation of the problem, this study concludes that the conflict between liberalization and sovereignty in Investment Law is bridged by the Constitutional Court by giving a ruling that state sovereignty is still maintained. This decision provides for the preservation of state sovereignty with some supporting elements stipulated in this law.
The decision of the constitutional court in the views of the inclusive legal theory is still relevant to the elements of the inclusive legal theory. This can be seen from the legal procedures used by the judge in giving decisions. However, there are other elements that have not been applied by the judge in considering the impact of foreign investment. Judges are still passive, making this ruling have some problems in a good effort to create legal justice.
It is suggested that the Inclusive Legal Theory give practical improvements to be used by legal development actors in practical areas, such as judges, lawyers or other law enforcers. It also needs theoretical improvement through the study of legal philosophy by academics to make a better Indonesian legal condition.