Introduction to Indonesian Constitutional Law

Terminology French Droit ConstitutionnelEnglish Constitutional LawGerman Staatsrecht. Also in use is the term

verfassungsrecht as opposed to verwaltungsrecht (which refers to state administration law).

Dutch Staatsrecht (literally: state law), in which there are two notions: staatsrecht in ruimere zin (broad meaning), and staatsrecht in engere zin (narrow meaning)

Definitionsa. van Vollenhoven

Constitutional Law: governs all of the upper legal communities (masyarakat hukum atasan) and the lower legal communities (masyarakat hukum bawahan) in accordance with their respective levels, which determines their territories or scope of subjects, determines the institutions in the environment of the legal community concerned and their respective functions, while determining the organization and authority of the said institutions.

b. van der PotConstitutional Law: a group of regulations which determine the institutions needed as well as their respective authorities, their internal relationship, and their relationship with individual citizens in their activities. This definition of van der Pot covers a broad definition, because in addition to human rights it also includes various aspects of state and citizen activities which, according to the previous definitions, are considered objects of State Administration Law.

c. Moh. Kusnardi dan Harmaily IbrahimConstitutional Law: a collection of laws which govern the state organization, the relationship between state organs both vertically and horizontally, and the status of citizens and their fundamental rights.

d. Prof. Jimly Asshiddiqie Constitutional Law: law and practical reality which govern: 1) the noble values and collective aspirations of a state’s citizens; 2) the institutional format of state organizations; 3) the inter-relationship mechanism among state institutions; and 4) the relationship mechanism between state institutions and citizens.

In principle, those 4 elements are the essence of constitution as the main object of the study of Constitutional Law, because a constitution basically comprises (i) the consensus among citizens to live together in a state and civic community, (ii) the collective consensus regarding the institutional format of state organizations, (iii) the collective consensus regarding the relationship patterns and mechanism among state organs or institutions, and (iv) the collective consensus regarding the principles and mechanism of relationship between state organs and citizens.

From the various definitions above, it can be concluded that:

(a) Constitutional Law is a discipline in the science of law, i.e. state law, which falls under the domain of public law;

(b) Several definitions of Constitutional Law have been developed by scholars such that they include not only the study of state organs, the functions and the internal relationship mechanism of the state organs, but also issues related to the relationship mechanism between state organs and citizens;

(c) Constitutional Law in itself is not merely a Recht (law), or a mere Wet (written law) but also a lehre (theory), so that the definition includes both verfassungsrecht (constitutional law) and verfassungslehre (theory of constitution);

(d) Constitutional Law in its broad definition includes both the law studying the state in a static condition (staat in rust) and the law studying the state in motion (staat in beweging)

Categorization of Constitutional Law

a. (i) General Constitutional Law: discusses the generally applicable principals and fundamentals; (ii) Positive Constitutional Law: only discusses the Constitutional Law applicable at a particular point in time and at a certain place.

b. (i) Static Constitutional Law: if the state which becomes the object of its study is viewed in a static state (staat in rust); usually referred to as Constitutional Law in a narrow meaning; (ii) Dynamic Constitutional Law: if the state which becomes the object of its study is viewed in motion (staat in beweging); usually referred to as Constitutional Law in a broad meaning and is called the study of State Administration Law (Verwaltungsrecht).

Sources of Constitutional Law

• The Constitution; and written legislation and regulations• Precedents/Jurisprudence from the judiciary• State conventions/customs• Certain international law• Certain teachings/doctrines of Constitutional Law

Legislation and Regulations

•The 1945 Constitution of the Republic of Indonesia (Undang-undang Dasar Negara Republik Indonesia Tahun 1945)•Law/Government Regulation in Lieu of Law (Undang-

undang/Peraturan Pemerintah Pengganti Undang-undang)•Government Regulation (Peraturan Pemerintah)•Presidential Regulation (Peraturan Presiden)•Regional/Local Regulation (Peraturan Daerah)

Indonesian Constitutional History (1)

• Toward the end of Japanese occupation: - BPUPKI (Badan Penyelidik Usaha-usaha Persiapan

Kemerdekaan Indonesia) / Dokoritsu Zyumbi Tyoozakai

(Body for Investigation of Endeavors for Indonesian Independence Preparation)* - PPKI (Panitia Persiapan Kemerdekaan Indonesia) / Dokoritsu Zyumbi Iinkai (Committee for Indonesian Independence Preparation)

* To better understand the underlying thoughts & debates behind the original UUD 1945, the book Risalah Sidang-sidang BPUPKI (Minutes of BPUPKI Meetings) warrants further study.

Indonesian Constitutional History (2)

• 17th August 1945: Indonesia’s independence was proclaimed.• 18th August 1945: the 1945 Constitution of the Republic of Indonesia

(UUD NRI 1945), drafted by the BPUPKI, was passed by the PPKI. intended by those who passed it to be a temporary constitution, given the nature of the situation then argument to

support this view was primarily provided by Joeniarto, Harun al Rasyid,

Moh. Kusnardi & Harmaily Ibrahim

Indonesian Constitutional History (3)

Indonesia’s Constitution throughout history to dateand the period it is in force:1. UUD 1945 (the 1945 Constitution): 18th August 1945 – 27th December 19492. Konstitusi RIS (1949) (Constitution of the United States of the Republic of Indonesia of 1949): 27th December 1949 – 17th August 19503. UUDS 1950 (the 1950 Provisional Constitution): 17th August 1950 – 5th July 19594. Return to UUD 1945 (the 1945 Constitution):

5th July 1959 – 19th October 1999

Indonesian Constitutional History (4)

5. amendments to UUD 1945 / transitional period: 19th October 1999 – 10th August 2002

- Problem at each amendment by the MPR: too short a time to conclude each amendment, thus results in many weaknesses, which leads to the establishment of the Komisi Konstitusi

(Commission of Constitution) to consolidate comprehensively the Constitution and its four amendments

6. four-time amended UUD 1945: 10 th August 2002 – the present

The Four Amendments (1)

• Background to the series of 4 amendments- abuse of the original 1945 Constitution— espcl. for the benefit of holder of the executive branch—by the Guided Democracy administration and later by the New Order administration, e.g. no limit on the number of terms a president may serve, too strong executive powers v.a.v. legislative & judicial powers in the 1945 Constitution (which is why the original 1945 Constitution is dubbed an ‘executive heavy’ constitution), etc.

‘sacralization’ of the 1945 Constitution by the New Order Administration

The Four Amendments (2)

- fall of President Soeharto of the New Order on 21st May 1998 by people’s power - thus a need to prevent future abuse, such as a need to limit the number of terms of service of a president in the Constitution, a need to limit & balance executive powers, a need to enhance constitutional guarantees on human rights, etc.

The Four Amendments (3)

• First Amendment (19th October 1999)- 9 articles amended- concerns 16 points of provisions (norma)- highlight/focus of amendment: reducing presidential power, e.g. limitation of presidential term of office to two terms of five years each

The Four Amendments (4)

Second Amendment (18th August 2000)- 25 articles amended- concerns 59 points of provisions (norma)- highlight/focus of amendment: substantive changes in the system and structure of regional government, comprehensive guarantee of human rights, shift of legislative power from president to parliament (i.e. DPR)

The Four Amendments (5)

• Third Amendment (9th November 2001)- 23 articles amended- concerns 68 points of provisions (norma)- highlight/focus of amendment: introduction of direct presidential election; introduction of regional representation, i.e. a new representative body named the DPD; radical reduction of the MPR’s power and legal status (from highest state institution to a mere high state institution equal to other high state institutions, i.e. the president, the parliament (DPR), the DPD, the Supreme Court (MA), the Constitutional Court (MK), the Judicial Commission (KY))

The Four Amendments (6)

Fourth Amendment (10th August 2002)- 18 articles amended- concerns 31 points of provisions (norma)- highlight/focus of amendment: further enhancement to direct presidential election (such as introduction of 2nd round of election), radical change of MPR’s structure (to DPR members + DPD members) and further reduction of & provision on the MPR’s power

The Four Amendments (7)

In sum, after all the 4 amendments:- 46 points of provisions (norma) were amended & added with new provisions- only 25 points of provisions (norma) of the original UUD 1945 left not amended- in total, the ‘new’ UUD 1945 contains 174 substantive new provisions, as compared to the original UUD 1945’s 37 articles- in total, the ‘new’ UUD 1945 contains 199 points of provisions (norma), as compared to the original UUD 1945’s 71 points of provisions (norma)

The Four Amendments (8)

In sum, after all the 4 amendments: 46 points of provisions (norma) were amended & added with

new provisions only 25 points of provisions (norma) of the original UUD 1945

left not amended in total, the ‘new’ UUD 1945 contains 174 substantive new

provisions, as compared to the original UUD 1945’s 37 articles

in total, the ‘new’ UUD 1945 contains 199 points of provisions (norma), as compared to the original UUD 1945’s 71 points of provisions (norma)

having learned all the figures above, conclusion: the series of 4 amendments amended the original UUD1945 by more than 300%.

The Four Amendments (9)

• Range of constitutional issues covered by the series of 4 amendments:- human rights, citizens’ rights and obligations, relationship mechanism between citizens and the state, procedures for defending those rights when impaired- fundamental principles of democracy, the rule of law, mechanism for their realization & exercise (such as general elections, etc)- format of state institution, relationship mechanism among state organs, accountability system of officials

Issues & Debates (1)

• 5th amendment?• Return to the original UUD 1945?• After such massive amendments, does it still stay true to the spirit of

the original UUD 1945? Does it still stay true to the spirit of the founding fathers/its drafters? With such massive changes, is it actually an amended UUD 1945 or a whole new constitution? Does a constitution have to forever stay true to the initial spirit or does it instead have to live up to/ reflect the spirit of the people of a given time?

Issues & Debates (2)

• Is unitary state (negara kesatuan) final & may never change with any amendment of the constitution?• After the 4 amendments, which are we: presidential or parliamentary?

Are we really still presidential?• After the 4 amendments, are we really still a unitary state? Or, rather,

have we shifted to being a federal state?• DPD: Is it really a senate? With its powers provided in the UUD 1945,

can it really function, and as such do we really need it?

Issues & Debates (3)

• MPR: is it really a joint session of DPR and DPD? And which are we: bicameral or tricameral?• The more evident emergence of state auxiliary agencies in the UUD 1945• Should the Elucidation (Penjelasan) to the UUD 1945 be dropped or should it

have been maintained?• The Komisi Konstitusi (Commission of Constitution) and its works/drafts

Terima kasih…