CONSTITUTIONAL AMENDMENTS (UUD 1945): FIND THAT THE STATE SYSTEM IN ACCORDANCE WITH AGE.
(Interpretation of Historical and Sociological)
A. Preliminary
In countries of modern, especially in the twentieth century. In general the basic operation of the State formulated into a constitution or basic laws that are written. The Constitution contains only the basic law was written, but in there practice rules unwritten. And also the basic legal rules that were written only contain basic points alone, without a clear breakdown of the rule. So that the rules contain a double meaning that less guarantee certainty intent provision. In it Prof. Dr. Yusril Ihza Mahendra considers that it is one form of strategy for the creation of social order in accordance with the times, as he expressed in his writings. In basic rules of State administration in the constitution and not the details-the details, is a deliberate action, not because of negligence. The constitution drafting that on generally realize that the society that exists in his country is dynamic, constantly changing from time to time. Thus, the relationship between the constitution and the community is an interactive relationship processes. On one hand the constitution provides the basic framework of the problem - a fundamental problem in the administration of the State, while on the other hand understanding of the constitution is also influenced by the development of society.
The idea that living in a particular historical period and standardized within the constitution, required to conform with the development of Age, and therefore the constitution is expected to continue - constantly changing. Development of the era can not be separated from the pattern of the interactive relationship between the constitution and the people brought forth the existence of a constitutional amendment demands for adjustment. And therefore the constitution is expected to continue to experience a change in line with the demands and needs. even if necessary, should be opened the possibility to change the constitution in its entirety with a new constitution, with of course remain to protect esensialies elements of the constitution was first drawn up, which already have historical values are fundamental.
While the reality of today's modern country, sometimes the constitution is not entirely about a legal document. Theoretically, the Constitution can be divided into two categories, namely the constitution of political and social constitution. The first category Constitution Solely is a legal document that contains the articles that contain basic norms in the administration of the State, the relationship between the people and the State, State agencies and so forth. While the constitution of the second kind is more widespread than just a legal document because it contains the social ideals of a nation that created it, philosophical formulations of the State. Formulations of social systems and economic systems, and also the formula - the formula of political system that wants to be developed in that country.
The Constitution in the experience of all world countries have experienced changes or amendments, because the position, function and purpose in the state constitution to change from era to era. on the transition, the constitution serves as the fortress of separation between people and rulers who then gradually have the function as an instrument of the people in power struggle against the ruling class. So when the struggle of the people that succeed, the constitution to shift the position and role of mere security guards and the interests of the people living on the ruling class injustice, becomes the ultimate weapon to end the power of the people. Unilateral one faction in a system of monarchy and oligarchy, and to build a good foundation of a new life on the basis of common interests of the people by using different ideology such as: individualism, liberalism, universalism, democracy and so forth. Furthermore, the constitutional position and function are determined by the ideology that underlies the State.
In the history of the western world, the constitution is intended to determine the limit of the ruling authority, guarantee the right of the people and set the running of the government. While in the States which bases itself on constitutional democracy, the constitution has the function of a typical, ie limiting government power in such a way that the operation of power is not arbitrary, and thus expected the rights of citizens will be better protected. This idea is called constitutionalism. That is an idea of community representation to people - people who elected to preserve and fight for the rights of the people. So provisions - provisions of State rules generated by these institutions is a representation of the voice community. Because the stable and whether or steady-state operation of the process very least are determined stable and least stable factor or whether the constitution. both in theory and in practice.
B. Should Amendment Act of 1945
Constitution of Indonesia can be classified into the social constitution, which shades the formulation of the norms of the constitution remain open to change. The Constitution not only the legal texts governing political institutions, but also include ideology, aspirations and political ideals, basic statements about the idea of statehood and the recognition of a belief and the fundamental principles embraced by the people who created it.
Although the 1945 Constitution is believed to be formulated based on sources that are transcendental, basically a man's work is limited by space and time. Because we must be aware of the imperfections of human work (man made), as expressed by Moris: Nothing Human cans be perfect. Sorrounded by Difficulties, We did the best We Leaving Could those with WHO Should it come after us to take counsel from experience, and prudently exercise the power of amendment, provided the which We Had .. that amendments to further refine the Constitution submitted to the people (or generation), which then after them. To enable improvements in the future, the compilers of the Constitution set the procedure for changing (amanademen). And Moris reminded, for the use of provisions regarding the amendment used with great wisdom and prudence (Prudently). And from it all, every constitution is always the opportunity for amendments to the various records that must be considered,
although there are relatively rigid constitution to change. The constitution is preceded by a preamble. In the opening that was loaded formulations philosophical about the purpose and basis of the existence of the State republic of Indonesia. In the anglo Saxon tradition, the meaning of law is only the articles written on a legislation, sedangankan preambule not contain norms, not even juridical implications of penapsiran articles. Meanwhile, the Indonesian constitution - is heavily influenced by the Continental European tradition, the opening has a very important position .. even in the law of 1945 says that opening the constitution contains the main points of the mind or the state basic standards which will be formulated in the articles konstiitusi. In this case the opening of Act of 1945 as the guidance and views of the nation and the State of Indonesia in view as the source of Pinal in determining the form of the State of Indonesia.
Constitution - Constitution of 1945 as the constitution of Indonesia which includes the points and should be valid for a long time. Because the constitution is the result of a long struggle and exhausting, so by the Pounding Fathers as the founder of the State, the constitution is considered the foundation of State must dipertahankan.dan besides that, his thoughts and views of the pembentukkanya to reach out far ahead. However what is stated in the constitution is relative. This is due not absolute humans and also there is a reality of the factors that are very robust to change and accelerate the enactment of the constitution as the basis for the State.
When the discourse of "constitution" and "democracy" dipublik rolling in this country related to the ongoing political transition, which opened up opportunities to rebuild democracy, while perfecting the constitution in 1992. Digulirkannya perfecting the constitution by one of them Dr.Adnan Buyung Nasution, he considers the constitution as an important improvement Act of 1945 turned out to be one factor inhibiting the realization of democracy in Indonesia. Therefore, efforts to build democracy by itself require the completion of the constitution.
But the proposal was a very harsh criticisms of the New Order regime. Criticism shows a very high authority in the government of Indonesia. Because we know that the new order regime (as with the old order regime post-1959) menyakralkan 1945 Constitution as a backrest to develop a political system called "Pancasila Democracy", which in essence is merely a continuation of "Guided Democracy." 1945 Constitution is important because the Constitution allows the establishment of totalitarianism with democracy sheath. Naturally, the idea of changing the Constitution is taboo.
Actually the view should be no change or amendment to the 1945 Constitution that did not infringe with the views of leaders who had founded the nation of this State. it has been said by Soekarno (one of the Founding Fathers) of the 1945 Constitution are:
"... ... ... Just a temporary constitution, the Constitution of the Lightning, that perhaps virtually all, this is revolutie grondwet. Later we make the Constitution a more perfect and complete ".
Sukarno was realized typed statement he became the first president. During the Old Order regime in power, the nature of transience of the 1945 Constitution at that time was proved by the application of the Constitution Constitution of 1949 and 1950, although it eventually came back to the 1945 Constitution, from where the Constitution sacred by the Old Order and finally passed by the New Order government.
So in the change history of the Indonesian state administration has proved that once accepted the four periods of the Constitution (Basic Law). Among others:
a. (First period) is the enactment of the Act of 1945, from August 18, 1945 until 27 December 1949.
b. Applicability of the Constitution of the Republic of Indonesia States, 1949, from December 27 until August 17, 1950.
c. Applicability of the Constitution of The 1950, from August 17, 1950 samapai July 5, 1959.
d. (Second Period) Applicability of return of the Constitution of 1945, from July 5, 1959 until the beginning of the Reformation.
e. (Third period) the enactment of Act Amendments of 1945, from the beginning of the Reformation to the present.
C. According to the 1945 Constitution Amendment Procedure
Constitution as the foundation of the State shall contain matters that are fundamental and universal, where it is translated back in the body of the Constitution (or could be called well-organic laws). That's all there is deliberate so Unser law does not quickly obsolete and rapidly changing.
The dynamics of a dynamic society, which is always looking for a better order, that is the presence of stronger democratic transition of society, making these factors encourage the adjustment between the development community and the State, which is to go keperubahan the procedures that are constitutional amendments that was in line with existing rules. Because humans as agents of creation and also subject to obey it, think it would be better done if changes had to be done to change, because it is one for the adjustment with growth is happening from the still survive in a regime where it is no longer relevant to the era.
In the constitution of any democratic country there is always a provision or article that allows changes to the constitution. The direction of change is nothing but to achieve the ideals of nation and state in accordance with the times.
In Indonesia, the direction of constitutional amendments that would have been very clear, that is very consistent and continuously seek the realization of the meaning of independence, which is normative has been formulated by the founders of the State in the 1945 Constitution, namely: Promote the General Welfare, Feeding the nation's life and participated as well as in creating world peace.
Before any changes, exactly the procedure changes to the 1945 Constitution have been set forth in Article 37 of the Constitution. Which confirms her article about modifying the law of 1945 must be attended by members of the Assembly at least two thirds of the total. And the decision to change the Constitution is taken with the approval of at least two thirds of the amount present
During the Age of the Old Order and New Order, they embraced constitutional democracy, both at the parliamentary or presidential system, (before the change) the role of parliament as the representative body of the people have a very determining role, one of which is their job is to elect a president and vice president . It's all based on the provisions of the 1945 Constitution. but at the time of the new order any provision that deviates darting through all of the rules that should be run, namely the provisions of the 1945 changes in a very tightened and the impossible can be done at that time, namely the provision of the MPR which released No. IV/MPR/1983 about the referendum. This assessment is described in Act No. 5 of 1985 on the referendum.
It MPR determining, that if the Assembly would amend the 1945 Constitution it must seek the views of the people through referendum. In the Law on the referendum could dilakuka changes through refendum to be followed by 90% of the people of Indonesia. And the 1945 MPR only maintain but not willing to make changes to the 1945 Constitution.
MPR shows that have been formed irrasionalisasi about changes that will be done dipastikkkan not change. Everything shows that co-setting ruling that agency should be doing checks and balances on power.
And with over time, with the fall kepemimipinan new order, encouraged the Assembly to reform the special session in 1998, which set about the lifting of the Legislative Act No.. IV/MPR/1983. then tap does not apply again. Then come back amendment procedure under the provisions set out in Article 37 UUD 1945, which is possible to do an amendment that would fix the constitutional system of Indonesia. So that we can achieve the desired goal as an independent nation really is.
From the results of the 1945 changes made by the Assembly, among many others also made additional changes to the 1945 Constitution sets out the procedures prescribed in Article 37 of Chapter XVI is completely reads as follows:
(1) Proposed changes to the articles of the Constitution can be scheduled in the People's Consultative Assembly, if submitted by at least one third of the members of the People's consultative Assembly.
(2) Any proposed amendments to the articles of the basic Act shall be submitted in writing and addressed with clear what parts are proposed to be changed and why.
(3) To change the articles of the Constitution, the People's Consultative Assembly was attended by at least two thirds of the members of the People's Consultative Assembly.
(4) The decision to alter the articles of the Act of 1945 made with the approval of at least fifty percent plus one of all members of the People's Consultative Assembly.
(5) Special about the shape of the Unitary Republic of Indonesia can not be changed.
The result of the above amendments, provide a vast space to be changed, the rules shall be deemed to have been in accordance with the wishes of the people, and that too in accordance with the concept of a modern constitution, especially the constitution that is used in continental countries.
D. Reconstruction of Indonesian Constitutional Amendment Procedure
So very important constitutional amendment that always rolled out by political actors. This is illustrated by an expert of Constitutional Law Professor. Dr. Jimly Asshiddiqie, SH. He likens the constitution as "Shari'a" or "symbolic head of state" or "symbolic scriptures" in a civil religion in which the basis for upholding the state laws of Indonesia, which contains a function as a unifying symbol (a symbol of unity), expression and grandeur of nationality (identity of the nation) and the central religious ceremony (center of ceremony).
Modality is spoken at the beginning of the reform, which is the revamping of the People's Consultative Majlis (Assembly). MPR has the right to conduct constitutional reform in Indonesia. In the view of Dr. Adnan Buyung Nasution, the Assembly has held four stages of the amendment which indicates that lebuh towards good. Among others: The members have taken lessons from the failure of a constituent who once performed by the Old Order. Namely, although deliberations lasted so tough, but each faction is not fully maintained with his will, so that failures that never happened did not happen in completing the 1945 amendment.
Another thing that is also very important is that the amendment to fully involve the military. Because the military now, especially the army, has channeled his political aspirations through the military-police faction in the Assembly, so that they get involved in the amendment process and in itself also responsible for the results.
While the amendment results show there is sufficient progress in the improvement fundamental state of life. That is in it has started to put the principle of triad politics, bicameral parliamentary system, a direct presidential election system and others. Despite many shortcomings and inkonsistensiterhadap a paradigm system of government. From the institutional point of, for example, the amendment was a potential institutional conflict due to uncertainty in the formulation of the articles relating to the functions and relationships between their respective state agencies. The desire to apply the principles of triad politics in our constitutional structure, but as demonstrated by the Constitutional Court case, the amendment was not fully abandon the old paradigm that puts the MPR as a supranational institution Negara.oleh why this amendment should be placed as a springboard for further improvements in the constitution either by a constitutional commission. Unfortunately, the decision taken by the Assembly, did not provide a strong legal basis to include additional rules as required in the fraction of uniformed services and the F-KB. MPR only provide a legal basis in the form of MPR. Besides, the establishment of the Constitutional Commission as an instrument of agency workers the Assembly, did not provide assurance that their members behave and work together and independently. The more so because its function is only to review and amendment menyelarasakan results.
Political community seems likely to monopolize state affairs only in his grasp. Viewed from the perspective of constitutionalism, a good constitution is drawn up by involving the people as widely as possible. So who do diThailand, South Africa or the Philippines as an example of a successful constitutional reform in the perspective of constitutionalism. Thus the people involved trying to understand the process and take part determine the future of their nation. In the process there is the political education that will encourage increased awareness and intelligence as a citizen. therefore it is very disappointing trend of the MPR. However, all this should be viewed as a challenge. that in order to realize democracy, constitutionalism and more to give substantive meaning to the independence of national life, it is not easy.
In facing this challenge all elements of a nation that has the aspiration to realize democracy and liberation of the people through constitutional reforms necessary to interact with each other, build trust and cohesiveness in order to supervise and provide the political pressure for the process of perfecting the constitution is not entirely about the future are determined by the political elite, which in itself inherently have narrow interests as a consequence of its attachment within the party. From the political gaps that exist all elements of society trying to come perlua determining the direction of perfecting the process of constitution.
Thus the perspective of constitutionalism emphasizes the need for public involvement in preparing the constitution, as well as in the implementation of the constitution is low enforcement. Because according to the perspective of constitutionalism, the effective implementation of the constitution is very dependent on the support or the pressure of social forces that exist within the community. This power can only come about if there is the process of empowering (Enlightenment), a nation that allows the birth of human beings independent minded, which requires sustained and implementation of the contents of the constitution as a bond of living together.
In making changes to the constitution can not be separated from an ideal perspective, which is sometimes not in accordance with that thought, because the authors saw the necessity of amendments to the Constitution depends on the parameters. In this case there are four components of the parameter as penunutun changes will be made, among others: First, more and protect all citizens of Indonesia. Second, the welfare of the people in all aspects, the third parameter, the intellectual life of the nation. Changes in both the Constitution which contains provisions of the education budget allocation of 20% of the State Budget (APBN) Indonesian catch up on aspects of education as the container form of morality, integrity, and quality of Indonesian human. The fourth parameter, Indonesia remains a portion of world peace.
E. The Fifth Amendment of the 1945 Constitution as Completion of the State.
Persolan first into the conversation topic after the reform is to question the Constitution (the Constitution) or the Constitution in force. That during the two regimes (the Old Order and New Order) is considered sacred and when amended will dissolve the State of Indonesia.
After the reform, the Constitution re-Fitr as a result of committing political kesemula nation, according to KC Wheare, is a resultant that can be modified with new resultante if any changing needs and situations of Political-Social and Cultural Rights. The agreement on the constitution until now produce several changes. When reforms, political practitioners see the need to amend is a must to be done, therefore Regime change brings hope to the realization of the change of the Constitution of 1945, and the 1945 amendments to the agenda for the first time the Assembly elections in 1999 resulted, further changes 1945 happened again in 2000, 2001 and 2002.
Then why should there is a demand that the fifth amendment? In this regard Sri Hastuti Puspitasari said the cause of it was related to weakness of the 1945 results of the change in 1999, 2000, 2001, 2002. used when the 1945 Constitution was amended for the first time, rolling grounds that the Act of 1945 is too short so that contain multiple interpretations. 1945 was considered too large to give power to the executive president so too heavy. Constitution which had also given birth reduction of the sovereignty of the people become sovereign rulers, because people do not really hear their aspirations in the event pegambilan important decision. For example, in a presidential election in the MPR. Therefore, the 1945 deserves to be changed. Which amendment has produced a democracy based on community desires directly, no longer based on representation in the MPR.
Now, anyone can shout as loud as any of the need to amend the 1945 Constitution for the improvement of the constitution that would lift the nation derazat dignity as a sovereign state to its people.
As a democratic country, must have a balance between the legislative and executive. The result of the first amendment which produce changes that are not answered many of its existing problems.
Institutional problems in the Indonesian State faced the nation after the amendment is not just a matter of institutional DPD ambiguous. But it is very complex. After the 1945 results of changes in walking for about 5 years, again questioned the existence of the constitution, because it can not answer the question that is on today. Conflict of authority between state agencies is not inevitable, as an example of such conflict between the Supreme Court (MA) with the Judicial Commission (KY), House of Representatives (DPR) with the Regional Representatives Council (DPD). And also comes the problem of the Independent State Institution that often cause conflict, such as the Commission by the Police and the judiciary, KPK and MA, KPK with Minister Secretary of State etc.. And it's all because they have not designed clearly in our constitution.
So the fifth amendment, which carried by the DPD to amend article 22 of D, which is about the vagueness system have great influence on the performance of DPD and institutional relationship between the DPD with the House of Representatives with the President.
Discourse amendment according to the author needs to review the universal, not to the amendment results in a new issue that it makes the system more chaotic state. Do not let the interests of the Constitution only to the extent of elite interests Simply, in this case Sri Hastuti Puspitasari offer about the idea of things that should not be ignored, that there are four coverage to consider, among other things: First, the amendment should not be done in a hurry. Second, people must be invited to speak to the purpose of the amendment. Third, the Federal State, which is dipemerintah federal units and the central government should not act alone. Fourth, whether the minority of a minority religion, ethnicity, language should be guaranteed rights (wheare, 1966)
On the other side of the fifth amendment to the Constitution, but to see the result of the amendments one through four, the negarawanpun expected to follow the example of the experiences of some countries that have a comprehensive amendment to the outcome. Yaiti them to revamp the constitution as a whole such as Thailand and the Philippines. To get good results by establishing their constitutional commission composed of members who are capable and are not tied to political interests for a moment. And it paid off a sturdy constitutions.
F. Cover
The Constitution created by the pounding father dibelahan this world. to set the order of nation and state in order to attain the ideals of human welfare on earth. The Constitution, which is considered well established in his time, which may be appropriate for the liberation of human rights as human beings. Gradually changes experienced in the more complex dynamics. Where it requires an answer to the concrete and shall conform to the values in contemporary times (with no substantive message as eliminating identity of a country).
Indonesian constitutional amendment that has been done is the stages that will lead to better improvement. So the amendment was expected to be the creation of the constitutional system in accordance with the demands of the times. Indonesia, which adopted the system of representation and didsisilain direct system, (such as direct presidential elections), it demands of politicians and statesmen to amend the 1945 Constitution with a two-way. That is a relatively fair way to make changes, namely the legislative Multiple paths combined with a referendum. This method is explained, constitutional amendments can be made if a majority support representative bodies at national level. If one agency refused, revoked the constitution change plan, or another path that is seeking approval from the representative agencies local level. If the obtained result of the relative balance between the agreed and rejected, the last confirmation asked directly to the people through referendum. Of course not easy, but the opportunity remains open. Allahu a'lam
"Human Nature Has Got Irodat and Nature,
Calculation of Man but God Has Got Power "
REFERENCES
Abu Daud and Abu Bakr Busrah Busrah, Principle-The principle of constitutional law, Ghalia Indonesia, Jakarta, 1991.
Adnan Buyung Nasution, Constitution, Democracy and the Meaning of Independence, Jakarta: LIPI and YLBHI, 2002.
Adnan Buyung Nasution, Aspiration Kostitusional Governance in Indonesia: A Study of Socio - Legal or the Constitution 1956-1959, translator Sylvia Tiwan (Jakarta: Pustaka Utama Grafiti, 2001), cet.2
Bagir Manan. SH, MCI, Theory and Constitutional Politics, Yogyakarta: UII FH PRESS, cet. Second, 2004.
Lecture Notes "The theory of the Constitution" which Amnestied By Prof. Dr. H. Thaib Dahlan, SH, M. Hum. On April 27, 2007
Thaib Dahlan, SH, M. Si, the Constitution Amendment Procedure System, paper presented at the event Forum Expert Meeting at the Hotel Grand Mercure Yogyakarta, 17 and March 18, 2007
Thaib Dahlan, SH, MSI, jazim Hamidi, SH, M. Hum and HJ. Ni'matul Huda, SH, M. Hum, Theory and Constitutional Law, Jakarta: PT RajaGrafindo Persada, 1999.
Thaib Dahlan, SH, M. Si constitutionalism In the Act - Act of 1945 (the Principles of Mind), paper presented in the Event Launching and Public Discussion of Justice Center for Constitutional Studies Faculty of Law of UII in cooperation with the Constitutional Court, Yogayakarta, 15 February 2007.
Mirriam Budiardjo, Basics of Political Science, New York: Scholastic Press, 2006.
Moh. Mahfud MD, "Debate Opinion Pros Cons of Amendment V of the 1945 Constitution (1): Let the Constitution Amendment Flows", Opinion People's Sovereignty, Thursday, June 7, 2007.
Ni'matul Huda "Debates Opinion Pros Cons Amendment V of the 1945 Constitution (2): 1945 Constitution should be amended (Repeat)", Opinion People's Sovereignty, Thursday, June 8, 2007
Sri Hastuti Puspitasari SH, MH, "Opinion Pros Cons Debate Constitution Amendment V! 945 (3-out): the Fifth Amendment, an elitist idea," The sovereignty of the People's Opinion on Saturday, June 9, 2007 Pahing
(Interpretation of Historical and Sociological)
A. Preliminary
In countries of modern, especially in the twentieth century. In general the basic operation of the State formulated into a constitution or basic laws that are written. The Constitution contains only the basic law was written, but in there practice rules unwritten. And also the basic legal rules that were written only contain basic points alone, without a clear breakdown of the rule. So that the rules contain a double meaning that less guarantee certainty intent provision. In it Prof. Dr. Yusril Ihza Mahendra considers that it is one form of strategy for the creation of social order in accordance with the times, as he expressed in his writings. In basic rules of State administration in the constitution and not the details-the details, is a deliberate action, not because of negligence. The constitution drafting that on generally realize that the society that exists in his country is dynamic, constantly changing from time to time. Thus, the relationship between the constitution and the community is an interactive relationship processes. On one hand the constitution provides the basic framework of the problem - a fundamental problem in the administration of the State, while on the other hand understanding of the constitution is also influenced by the development of society.
The idea that living in a particular historical period and standardized within the constitution, required to conform with the development of Age, and therefore the constitution is expected to continue - constantly changing. Development of the era can not be separated from the pattern of the interactive relationship between the constitution and the people brought forth the existence of a constitutional amendment demands for adjustment. And therefore the constitution is expected to continue to experience a change in line with the demands and needs. even if necessary, should be opened the possibility to change the constitution in its entirety with a new constitution, with of course remain to protect esensialies elements of the constitution was first drawn up, which already have historical values are fundamental.
While the reality of today's modern country, sometimes the constitution is not entirely about a legal document. Theoretically, the Constitution can be divided into two categories, namely the constitution of political and social constitution. The first category Constitution Solely is a legal document that contains the articles that contain basic norms in the administration of the State, the relationship between the people and the State, State agencies and so forth. While the constitution of the second kind is more widespread than just a legal document because it contains the social ideals of a nation that created it, philosophical formulations of the State. Formulations of social systems and economic systems, and also the formula - the formula of political system that wants to be developed in that country.
The Constitution in the experience of all world countries have experienced changes or amendments, because the position, function and purpose in the state constitution to change from era to era. on the transition, the constitution serves as the fortress of separation between people and rulers who then gradually have the function as an instrument of the people in power struggle against the ruling class. So when the struggle of the people that succeed, the constitution to shift the position and role of mere security guards and the interests of the people living on the ruling class injustice, becomes the ultimate weapon to end the power of the people. Unilateral one faction in a system of monarchy and oligarchy, and to build a good foundation of a new life on the basis of common interests of the people by using different ideology such as: individualism, liberalism, universalism, democracy and so forth. Furthermore, the constitutional position and function are determined by the ideology that underlies the State.
In the history of the western world, the constitution is intended to determine the limit of the ruling authority, guarantee the right of the people and set the running of the government. While in the States which bases itself on constitutional democracy, the constitution has the function of a typical, ie limiting government power in such a way that the operation of power is not arbitrary, and thus expected the rights of citizens will be better protected. This idea is called constitutionalism. That is an idea of community representation to people - people who elected to preserve and fight for the rights of the people. So provisions - provisions of State rules generated by these institutions is a representation of the voice community. Because the stable and whether or steady-state operation of the process very least are determined stable and least stable factor or whether the constitution. both in theory and in practice.
B. Should Amendment Act of 1945
Constitution of Indonesia can be classified into the social constitution, which shades the formulation of the norms of the constitution remain open to change. The Constitution not only the legal texts governing political institutions, but also include ideology, aspirations and political ideals, basic statements about the idea of statehood and the recognition of a belief and the fundamental principles embraced by the people who created it.
Although the 1945 Constitution is believed to be formulated based on sources that are transcendental, basically a man's work is limited by space and time. Because we must be aware of the imperfections of human work (man made), as expressed by Moris: Nothing Human cans be perfect. Sorrounded by Difficulties, We did the best We Leaving Could those with WHO Should it come after us to take counsel from experience, and prudently exercise the power of amendment, provided the which We Had .. that amendments to further refine the Constitution submitted to the people (or generation), which then after them. To enable improvements in the future, the compilers of the Constitution set the procedure for changing (amanademen). And Moris reminded, for the use of provisions regarding the amendment used with great wisdom and prudence (Prudently). And from it all, every constitution is always the opportunity for amendments to the various records that must be considered,
although there are relatively rigid constitution to change. The constitution is preceded by a preamble. In the opening that was loaded formulations philosophical about the purpose and basis of the existence of the State republic of Indonesia. In the anglo Saxon tradition, the meaning of law is only the articles written on a legislation, sedangankan preambule not contain norms, not even juridical implications of penapsiran articles. Meanwhile, the Indonesian constitution - is heavily influenced by the Continental European tradition, the opening has a very important position .. even in the law of 1945 says that opening the constitution contains the main points of the mind or the state basic standards which will be formulated in the articles konstiitusi. In this case the opening of Act of 1945 as the guidance and views of the nation and the State of Indonesia in view as the source of Pinal in determining the form of the State of Indonesia.
Constitution - Constitution of 1945 as the constitution of Indonesia which includes the points and should be valid for a long time. Because the constitution is the result of a long struggle and exhausting, so by the Pounding Fathers as the founder of the State, the constitution is considered the foundation of State must dipertahankan.dan besides that, his thoughts and views of the pembentukkanya to reach out far ahead. However what is stated in the constitution is relative. This is due not absolute humans and also there is a reality of the factors that are very robust to change and accelerate the enactment of the constitution as the basis for the State.
When the discourse of "constitution" and "democracy" dipublik rolling in this country related to the ongoing political transition, which opened up opportunities to rebuild democracy, while perfecting the constitution in 1992. Digulirkannya perfecting the constitution by one of them Dr.Adnan Buyung Nasution, he considers the constitution as an important improvement Act of 1945 turned out to be one factor inhibiting the realization of democracy in Indonesia. Therefore, efforts to build democracy by itself require the completion of the constitution.
But the proposal was a very harsh criticisms of the New Order regime. Criticism shows a very high authority in the government of Indonesia. Because we know that the new order regime (as with the old order regime post-1959) menyakralkan 1945 Constitution as a backrest to develop a political system called "Pancasila Democracy", which in essence is merely a continuation of "Guided Democracy." 1945 Constitution is important because the Constitution allows the establishment of totalitarianism with democracy sheath. Naturally, the idea of changing the Constitution is taboo.
Actually the view should be no change or amendment to the 1945 Constitution that did not infringe with the views of leaders who had founded the nation of this State. it has been said by Soekarno (one of the Founding Fathers) of the 1945 Constitution are:
"... ... ... Just a temporary constitution, the Constitution of the Lightning, that perhaps virtually all, this is revolutie grondwet. Later we make the Constitution a more perfect and complete ".
Sukarno was realized typed statement he became the first president. During the Old Order regime in power, the nature of transience of the 1945 Constitution at that time was proved by the application of the Constitution Constitution of 1949 and 1950, although it eventually came back to the 1945 Constitution, from where the Constitution sacred by the Old Order and finally passed by the New Order government.
So in the change history of the Indonesian state administration has proved that once accepted the four periods of the Constitution (Basic Law). Among others:
a. (First period) is the enactment of the Act of 1945, from August 18, 1945 until 27 December 1949.
b. Applicability of the Constitution of the Republic of Indonesia States, 1949, from December 27 until August 17, 1950.
c. Applicability of the Constitution of The 1950, from August 17, 1950 samapai July 5, 1959.
d. (Second Period) Applicability of return of the Constitution of 1945, from July 5, 1959 until the beginning of the Reformation.
e. (Third period) the enactment of Act Amendments of 1945, from the beginning of the Reformation to the present.
C. According to the 1945 Constitution Amendment Procedure
Constitution as the foundation of the State shall contain matters that are fundamental and universal, where it is translated back in the body of the Constitution (or could be called well-organic laws). That's all there is deliberate so Unser law does not quickly obsolete and rapidly changing.
The dynamics of a dynamic society, which is always looking for a better order, that is the presence of stronger democratic transition of society, making these factors encourage the adjustment between the development community and the State, which is to go keperubahan the procedures that are constitutional amendments that was in line with existing rules. Because humans as agents of creation and also subject to obey it, think it would be better done if changes had to be done to change, because it is one for the adjustment with growth is happening from the still survive in a regime where it is no longer relevant to the era.
In the constitution of any democratic country there is always a provision or article that allows changes to the constitution. The direction of change is nothing but to achieve the ideals of nation and state in accordance with the times.
In Indonesia, the direction of constitutional amendments that would have been very clear, that is very consistent and continuously seek the realization of the meaning of independence, which is normative has been formulated by the founders of the State in the 1945 Constitution, namely: Promote the General Welfare, Feeding the nation's life and participated as well as in creating world peace.
Before any changes, exactly the procedure changes to the 1945 Constitution have been set forth in Article 37 of the Constitution. Which confirms her article about modifying the law of 1945 must be attended by members of the Assembly at least two thirds of the total. And the decision to change the Constitution is taken with the approval of at least two thirds of the amount present
During the Age of the Old Order and New Order, they embraced constitutional democracy, both at the parliamentary or presidential system, (before the change) the role of parliament as the representative body of the people have a very determining role, one of which is their job is to elect a president and vice president . It's all based on the provisions of the 1945 Constitution. but at the time of the new order any provision that deviates darting through all of the rules that should be run, namely the provisions of the 1945 changes in a very tightened and the impossible can be done at that time, namely the provision of the MPR which released No. IV/MPR/1983 about the referendum. This assessment is described in Act No. 5 of 1985 on the referendum.
It MPR determining, that if the Assembly would amend the 1945 Constitution it must seek the views of the people through referendum. In the Law on the referendum could dilakuka changes through refendum to be followed by 90% of the people of Indonesia. And the 1945 MPR only maintain but not willing to make changes to the 1945 Constitution.
MPR shows that have been formed irrasionalisasi about changes that will be done dipastikkkan not change. Everything shows that co-setting ruling that agency should be doing checks and balances on power.
And with over time, with the fall kepemimipinan new order, encouraged the Assembly to reform the special session in 1998, which set about the lifting of the Legislative Act No.. IV/MPR/1983. then tap does not apply again. Then come back amendment procedure under the provisions set out in Article 37 UUD 1945, which is possible to do an amendment that would fix the constitutional system of Indonesia. So that we can achieve the desired goal as an independent nation really is.
From the results of the 1945 changes made by the Assembly, among many others also made additional changes to the 1945 Constitution sets out the procedures prescribed in Article 37 of Chapter XVI is completely reads as follows:
(1) Proposed changes to the articles of the Constitution can be scheduled in the People's Consultative Assembly, if submitted by at least one third of the members of the People's consultative Assembly.
(2) Any proposed amendments to the articles of the basic Act shall be submitted in writing and addressed with clear what parts are proposed to be changed and why.
(3) To change the articles of the Constitution, the People's Consultative Assembly was attended by at least two thirds of the members of the People's Consultative Assembly.
(4) The decision to alter the articles of the Act of 1945 made with the approval of at least fifty percent plus one of all members of the People's Consultative Assembly.
(5) Special about the shape of the Unitary Republic of Indonesia can not be changed.
The result of the above amendments, provide a vast space to be changed, the rules shall be deemed to have been in accordance with the wishes of the people, and that too in accordance with the concept of a modern constitution, especially the constitution that is used in continental countries.
D. Reconstruction of Indonesian Constitutional Amendment Procedure
So very important constitutional amendment that always rolled out by political actors. This is illustrated by an expert of Constitutional Law Professor. Dr. Jimly Asshiddiqie, SH. He likens the constitution as "Shari'a" or "symbolic head of state" or "symbolic scriptures" in a civil religion in which the basis for upholding the state laws of Indonesia, which contains a function as a unifying symbol (a symbol of unity), expression and grandeur of nationality (identity of the nation) and the central religious ceremony (center of ceremony).
Modality is spoken at the beginning of the reform, which is the revamping of the People's Consultative Majlis (Assembly). MPR has the right to conduct constitutional reform in Indonesia. In the view of Dr. Adnan Buyung Nasution, the Assembly has held four stages of the amendment which indicates that lebuh towards good. Among others: The members have taken lessons from the failure of a constituent who once performed by the Old Order. Namely, although deliberations lasted so tough, but each faction is not fully maintained with his will, so that failures that never happened did not happen in completing the 1945 amendment.
Another thing that is also very important is that the amendment to fully involve the military. Because the military now, especially the army, has channeled his political aspirations through the military-police faction in the Assembly, so that they get involved in the amendment process and in itself also responsible for the results.
While the amendment results show there is sufficient progress in the improvement fundamental state of life. That is in it has started to put the principle of triad politics, bicameral parliamentary system, a direct presidential election system and others. Despite many shortcomings and inkonsistensiterhadap a paradigm system of government. From the institutional point of, for example, the amendment was a potential institutional conflict due to uncertainty in the formulation of the articles relating to the functions and relationships between their respective state agencies. The desire to apply the principles of triad politics in our constitutional structure, but as demonstrated by the Constitutional Court case, the amendment was not fully abandon the old paradigm that puts the MPR as a supranational institution Negara.oleh why this amendment should be placed as a springboard for further improvements in the constitution either by a constitutional commission. Unfortunately, the decision taken by the Assembly, did not provide a strong legal basis to include additional rules as required in the fraction of uniformed services and the F-KB. MPR only provide a legal basis in the form of MPR. Besides, the establishment of the Constitutional Commission as an instrument of agency workers the Assembly, did not provide assurance that their members behave and work together and independently. The more so because its function is only to review and amendment menyelarasakan results.
Political community seems likely to monopolize state affairs only in his grasp. Viewed from the perspective of constitutionalism, a good constitution is drawn up by involving the people as widely as possible. So who do diThailand, South Africa or the Philippines as an example of a successful constitutional reform in the perspective of constitutionalism. Thus the people involved trying to understand the process and take part determine the future of their nation. In the process there is the political education that will encourage increased awareness and intelligence as a citizen. therefore it is very disappointing trend of the MPR. However, all this should be viewed as a challenge. that in order to realize democracy, constitutionalism and more to give substantive meaning to the independence of national life, it is not easy.
In facing this challenge all elements of a nation that has the aspiration to realize democracy and liberation of the people through constitutional reforms necessary to interact with each other, build trust and cohesiveness in order to supervise and provide the political pressure for the process of perfecting the constitution is not entirely about the future are determined by the political elite, which in itself inherently have narrow interests as a consequence of its attachment within the party. From the political gaps that exist all elements of society trying to come perlua determining the direction of perfecting the process of constitution.
Thus the perspective of constitutionalism emphasizes the need for public involvement in preparing the constitution, as well as in the implementation of the constitution is low enforcement. Because according to the perspective of constitutionalism, the effective implementation of the constitution is very dependent on the support or the pressure of social forces that exist within the community. This power can only come about if there is the process of empowering (Enlightenment), a nation that allows the birth of human beings independent minded, which requires sustained and implementation of the contents of the constitution as a bond of living together.
In making changes to the constitution can not be separated from an ideal perspective, which is sometimes not in accordance with that thought, because the authors saw the necessity of amendments to the Constitution depends on the parameters. In this case there are four components of the parameter as penunutun changes will be made, among others: First, more and protect all citizens of Indonesia. Second, the welfare of the people in all aspects, the third parameter, the intellectual life of the nation. Changes in both the Constitution which contains provisions of the education budget allocation of 20% of the State Budget (APBN) Indonesian catch up on aspects of education as the container form of morality, integrity, and quality of Indonesian human. The fourth parameter, Indonesia remains a portion of world peace.
E. The Fifth Amendment of the 1945 Constitution as Completion of the State.
Persolan first into the conversation topic after the reform is to question the Constitution (the Constitution) or the Constitution in force. That during the two regimes (the Old Order and New Order) is considered sacred and when amended will dissolve the State of Indonesia.
After the reform, the Constitution re-Fitr as a result of committing political kesemula nation, according to KC Wheare, is a resultant that can be modified with new resultante if any changing needs and situations of Political-Social and Cultural Rights. The agreement on the constitution until now produce several changes. When reforms, political practitioners see the need to amend is a must to be done, therefore Regime change brings hope to the realization of the change of the Constitution of 1945, and the 1945 amendments to the agenda for the first time the Assembly elections in 1999 resulted, further changes 1945 happened again in 2000, 2001 and 2002.
Then why should there is a demand that the fifth amendment? In this regard Sri Hastuti Puspitasari said the cause of it was related to weakness of the 1945 results of the change in 1999, 2000, 2001, 2002. used when the 1945 Constitution was amended for the first time, rolling grounds that the Act of 1945 is too short so that contain multiple interpretations. 1945 was considered too large to give power to the executive president so too heavy. Constitution which had also given birth reduction of the sovereignty of the people become sovereign rulers, because people do not really hear their aspirations in the event pegambilan important decision. For example, in a presidential election in the MPR. Therefore, the 1945 deserves to be changed. Which amendment has produced a democracy based on community desires directly, no longer based on representation in the MPR.
Now, anyone can shout as loud as any of the need to amend the 1945 Constitution for the improvement of the constitution that would lift the nation derazat dignity as a sovereign state to its people.
As a democratic country, must have a balance between the legislative and executive. The result of the first amendment which produce changes that are not answered many of its existing problems.
Institutional problems in the Indonesian State faced the nation after the amendment is not just a matter of institutional DPD ambiguous. But it is very complex. After the 1945 results of changes in walking for about 5 years, again questioned the existence of the constitution, because it can not answer the question that is on today. Conflict of authority between state agencies is not inevitable, as an example of such conflict between the Supreme Court (MA) with the Judicial Commission (KY), House of Representatives (DPR) with the Regional Representatives Council (DPD). And also comes the problem of the Independent State Institution that often cause conflict, such as the Commission by the Police and the judiciary, KPK and MA, KPK with Minister Secretary of State etc.. And it's all because they have not designed clearly in our constitution.
So the fifth amendment, which carried by the DPD to amend article 22 of D, which is about the vagueness system have great influence on the performance of DPD and institutional relationship between the DPD with the House of Representatives with the President.
Discourse amendment according to the author needs to review the universal, not to the amendment results in a new issue that it makes the system more chaotic state. Do not let the interests of the Constitution only to the extent of elite interests Simply, in this case Sri Hastuti Puspitasari offer about the idea of things that should not be ignored, that there are four coverage to consider, among other things: First, the amendment should not be done in a hurry. Second, people must be invited to speak to the purpose of the amendment. Third, the Federal State, which is dipemerintah federal units and the central government should not act alone. Fourth, whether the minority of a minority religion, ethnicity, language should be guaranteed rights (wheare, 1966)
On the other side of the fifth amendment to the Constitution, but to see the result of the amendments one through four, the negarawanpun expected to follow the example of the experiences of some countries that have a comprehensive amendment to the outcome. Yaiti them to revamp the constitution as a whole such as Thailand and the Philippines. To get good results by establishing their constitutional commission composed of members who are capable and are not tied to political interests for a moment. And it paid off a sturdy constitutions.
F. Cover
The Constitution created by the pounding father dibelahan this world. to set the order of nation and state in order to attain the ideals of human welfare on earth. The Constitution, which is considered well established in his time, which may be appropriate for the liberation of human rights as human beings. Gradually changes experienced in the more complex dynamics. Where it requires an answer to the concrete and shall conform to the values in contemporary times (with no substantive message as eliminating identity of a country).
Indonesian constitutional amendment that has been done is the stages that will lead to better improvement. So the amendment was expected to be the creation of the constitutional system in accordance with the demands of the times. Indonesia, which adopted the system of representation and didsisilain direct system, (such as direct presidential elections), it demands of politicians and statesmen to amend the 1945 Constitution with a two-way. That is a relatively fair way to make changes, namely the legislative Multiple paths combined with a referendum. This method is explained, constitutional amendments can be made if a majority support representative bodies at national level. If one agency refused, revoked the constitution change plan, or another path that is seeking approval from the representative agencies local level. If the obtained result of the relative balance between the agreed and rejected, the last confirmation asked directly to the people through referendum. Of course not easy, but the opportunity remains open. Allahu a'lam
"Human Nature Has Got Irodat and Nature,
Calculation of Man but God Has Got Power "
REFERENCES
Abu Daud and Abu Bakr Busrah Busrah, Principle-The principle of constitutional law, Ghalia Indonesia, Jakarta, 1991.
Adnan Buyung Nasution, Constitution, Democracy and the Meaning of Independence, Jakarta: LIPI and YLBHI, 2002.
Adnan Buyung Nasution, Aspiration Kostitusional Governance in Indonesia: A Study of Socio - Legal or the Constitution 1956-1959, translator Sylvia Tiwan (Jakarta: Pustaka Utama Grafiti, 2001), cet.2
Bagir Manan. SH, MCI, Theory and Constitutional Politics, Yogyakarta: UII FH PRESS, cet. Second, 2004.
Lecture Notes "The theory of the Constitution" which Amnestied By Prof. Dr. H. Thaib Dahlan, SH, M. Hum. On April 27, 2007
Thaib Dahlan, SH, M. Si, the Constitution Amendment Procedure System, paper presented at the event Forum Expert Meeting at the Hotel Grand Mercure Yogyakarta, 17 and March 18, 2007
Thaib Dahlan, SH, MSI, jazim Hamidi, SH, M. Hum and HJ. Ni'matul Huda, SH, M. Hum, Theory and Constitutional Law, Jakarta: PT RajaGrafindo Persada, 1999.
Thaib Dahlan, SH, M. Si constitutionalism In the Act - Act of 1945 (the Principles of Mind), paper presented in the Event Launching and Public Discussion of Justice Center for Constitutional Studies Faculty of Law of UII in cooperation with the Constitutional Court, Yogayakarta, 15 February 2007.
Mirriam Budiardjo, Basics of Political Science, New York: Scholastic Press, 2006.
Moh. Mahfud MD, "Debate Opinion Pros Cons of Amendment V of the 1945 Constitution (1): Let the Constitution Amendment Flows", Opinion People's Sovereignty, Thursday, June 7, 2007.
Ni'matul Huda "Debates Opinion Pros Cons Amendment V of the 1945 Constitution (2): 1945 Constitution should be amended (Repeat)", Opinion People's Sovereignty, Thursday, June 8, 2007
Sri Hastuti Puspitasari SH, MH, "Opinion Pros Cons Debate Constitution Amendment V! 945 (3-out): the Fifth Amendment, an elitist idea," The sovereignty of the People's Opinion on Saturday, June 9, 2007 Pahing
EmoticonEmoticon