HTN NOTES COMPILATION

INTRODUCTION TO CONSTITUTIONAL LAW

A. Terms
- Recht = law
- Continental terms for constitutional law
• Germany: Verfassungsrecht
• Dutch: Staatsrecht
• French: Droit Constitutionele
• Italy: Dritto Constitutionale
- Anglosaxon (British, US): constitutional law.
- Indonesia:
• Hukum Tata Negara
• Hukum Konstitusi
- The term ‘Hukum Tata Negara’ is translated from the Dutch term staatsrecht.
- The term ‘Hukum Konstitusi’ is translated from the Anglosaxon term constitutional
law.
- Hukum Tata Negara and Hukum Konstitusi both have the same substance. The source
of both is the Constitution.
- Constitutional law is from common law system, so one of the sources is judicial
decision (law made by judges/court). Meanwhile, the main source of staatsrecht is act.

B. Definition
(Differentiate between experts from common law and civil law system. Read Jimly
Asshiddique’s book) (start page 23)
Di antara para ahli hukum, dapat dikatakan tidak terdapat rumusan yang sama tentang
definisi hukum dan demikian pula dengan definisi hukum tata negara sebagai hukum dan
sebagai cabang ilmu pengetahuan hukum. Perbedaan-perbedaan itu sebagian disebabkan
oleh beberapa faktor, seperti perbedaan pandangan para ahli dan perbedaan sistem yang
dianut suatu negara. Contohnya, ahli di negara-negara common law tentu memiliki
perspektif berbeda dengan ahli di negara-negara civil law.
Berikut ini adalah beberapa definisi hukum tata negara oleh para sarjana:
- Christian van Vollenhoven
Hukum tata negara mengatur semua masyarakat hukum atasan dan masyarakat hukum
bawahan menurut tingkatan-tingkatannya, yang masing-masing menentukan wilayah
atau lingkungan rakyatnya sendiri-sendiri, dan menentukan badan-badan dalam
lingkungan masyarakat hukum yang bersangkutan serta fungsinya masing-masinng,
serta menentukan pula susunan dan kewenangan badan-badan yang dimaksud. Sebagai
murid Oppenheim, van Vollenhoven juga mewarisi pandangan gurunya yang
membedakan hukum tata negara dan hukum administrasi negara. Pembedaan itu
digambarkan dengan perumpamaan dalam hukum tata negara, melihat negara dalam
keadaan diam (in rust), sedangkan dalam hukum administrasi negara melihat negara
dalam keadaan bergerak (in beweging).
- Paul Scholten
Hukum tata negara adalah het recht dat regelt de staatsorganisatie, atau hukum yang
mengatur mengenai tata organisasi negara. Scholten menekankan perbedaan antara
organisasi negara dan organisasi non-negara (contoh: gereja). Perbedaan itu ditekankan
dalam arti sempit sebagai hukum organisasi negara di satu pihak dengan hukum gereja
dan hukum perkumpulan perdata di pihak lain dengan kenyataan bahwa kedua jenis
hukum yang terakhir itu tidak memancarkan otoritas yang berdiri sendiri, melainkan
otoritas dari negara. Jika yang diatur adalah organisasi negara, maka hukum yang
mengaturnya adalah hukum tata negara.
- Van der Pot
Menurut van der Pot, hukum tata negara adalah peraturan-peraturan yang menentukan
badan-badan yang diperlukan beserta kewenangannya masing-masing, hubungannya
satu sama lain, serta hubungannya dengan individu warga negara dalam kegiatannya.
Pandangan van der Pot ini mencakup pengertian yang luas, di samping mencakup soal-
soal hak asasi manusia, juga men jangkau pula berbagai aspek kegiatan negara dan
warga negara yang dalam definisi sebelumnya dianggap sebagai objek kajian hukum
administrasi negara.
Among legal experts, it can be said that there is no unanimous formulation of the definition
of law and the same is true of the definition of constitutional law as law and as a branch of
legal science. These differences are partly due to several factors, such as differences in the
views of experts and differences in the system adopted by a country. For example, experts
in common law countries have a different perspective from experts in civil law countries.

Here are some definitions of constitutional law according to scholars:

- Christian van Vollenhoven
Constitutional law regulates all superior legal communities and subordinate legal
communities according to their levels, each of which determines the territory or
environment of its own people, and determines the bodies within the legal community
concerned and their respective functions, and also determines composition and
authority of the said bodies. As a student of Oppenheim, van Vollenhoven also
inherited the views of his teacher who distinguished constitutional law and state
administrative law. This distinction is illustrated by an analogy in constitutional law,
seeing the state in a state of silence (in rust), while in state administrative law it sees
the state in motion (in beweging).
- Paul Scholten
Constitutional law is het recht dat regelt de staatsorganisatie, or the law that regulates
state organization. Scholten emphasized the difference between state organizations and
non-state organizations (eg churches). The difference is emphasized in a narrow sense,
as the law of state organization is on the one hand and church law and civil association
law on the other hand, with the fact that the latter two types of law do not radiate an
independent authority, but rather the authority of the state. If what is regulated is a state
organization, then the law that governs it is constitutional law.
- Van der Pot
According to van der Pot, constitutional law is the regulations that determine the
necessary bodies and their respective authorities, their relationship to one another, and
their relationship with individual citizens in their activities. Van der Pot's view includes
a broad understanding, besides covering human rights issues, it also covers various
 aspects of state and citizen activities which in the previous definition were considered
as objects of state administrative law studies.

C. Object
- Traditional Perspective
HTN—Staatsrecht
Object: de staat (state)
Rules, norms, institution (very specific ones). Norms are the background of rules
[Ex: Article 22, 25 of 1945 Constitution (rule), President and DPR (institution),
Separation of power (norm)]
- Rules consist of:
1. Structures, powers and authority as well as function of the state institutions
2. Human rights, constitutional rights
Staatsrecht authority—law and power, law and constitutional law
- 1945 Constitution: power map
- Constitutional Law is mainly about 2 aspects: authority/power and human rights
- Staatsrecht from the perspective of Law and State/Recht) en (Staat)
Staatsrecht is law on the relationship between state and law
- HTN is about anything formulated in the Constitution

D. Scopes
- HTN is positive law
• Staats Inrichting: Organization; Institutions [specific ones]
• Bevoegheden Recht (power/authority): authority of the state institutions (which
is stipulated in the Constitution)
• Rechtspositie van de burgers (legal status of the citizen): Fundamental rights;
Grond rechten (basic rights)
- HTN Theory (constitutional theory)

E. Methods
1. Legal dogmatic (what?)
 2. Legal history (why?)
3. Functional structure
4. Hermeneutic
5. Comparative
Ex: President impeachment because of misdemeanor. Bill Clinton, ex-president of the US,
was impeached because he was dishonest. Dishonesty is a misdemeanor.

SUBSTANCE OF THE 1945 CONSTITUTION

A. CONCEPT
- The tern “constitution” comes from a Latin word, “constitute”, which means
established/appointed, and another Latin verb, “constituere”, “con” means together,
“statuere” means set up.
- Together = constitution must be exclusive; constitution must meet the needs of all.
- Constitutional convention = a forum of making constitution. In USA, the ones who make
constitution: congress (senates and representatives).
- In Indonesian history of constitution-making, Konstituante was a body that was in charge
to make the constitution.
- Since constitution is a set up or an enactment, the things that are to be constituted should
be lasting (durable), inclusive (no discrimination), principled (hal-hal pokok aja) and
fundamental (basics). Those are the 4 characteristics of constitution. (P.S. Constitution
shouldn’t be easy to be amended).
- In general, the durability of constitutions around the world: 19 years.
- M. Laica Marzuki’s definition
2 aspects: institution and human rights.
- Giovani Sartori’s definition
“Constitution is a collection of laws enacted by the Sovereign”.
Indonesia’s sovereign = sovereignty of the people (popular sovereign)

B. OTHER APPROACHES OF CONSTITUTION

- Hans Kelsen
 “Considering only a national legal order, the constitution represent the highest level of
positive law.”
In hierarchy of law, constitution should be the highest. In formal definition, Constitution
should be in capital ‘C’, which means a single document consisting of state institutions and
authority and relation between those institutions. Constitution material, on the other hand,
is a positive law that becomes the base for other laws/norms. This means other lower
positive laws should be in accordance with the constitution material.

- S.E. Finer, Vernon Bogdanor and Bernard:

“Constitutions are code of norms which aspire to regulate the allocation of powers,
functions and duties among the various agencies and offices government and to define the
relationship between these and public.”
The relation between power and public in constitutionalism should also have guarantee of
human rights.

C. SUBSTANCE OF THE CONSTITUTION

- Institutional aspect:
• State institution/constitutional organ
Not all state institutions are included in constitutional organ (ex: KPK, Komisi
Penyiaran are not constitutional organs but they are state institutions)
• Power/authority
Power/authority of the institutions. Lembaga negara yang diatur dan diberi
kewenangan dalam Konstitusi = constitutional organs. Constitutional organs are
often said to be main state organs.
• Relationship between the institutions
Separation of power is flexible, and each power branch is related to the other
branches.
• Formation and amendment of the Constitution
- Human rights
D. QUESTIONS
- Dimana kedudukan Konstitusi UUD 1945? Kenapa?
Before amendment, ada penjelasan. After amendment no penjelasan. Before amendment,
Konstitusi hanya sebagai hukum dasar. Hukum dasar = semua harus merujuk padanya.
(Highest law = semua tidak boleh bertentangan). In UUD, there’s no explicit part that says
UUD 1945 is the supreme law. But it is stipulated in article 7 on the Law of Law-Making
Process.
- Ideologi:
“Therefore, the independence of Indonesia shall be formulated into a constitution of the
Republic of Indonesia which shall be built into a sovereign state based on a belief in the
One and Only God, just and civilised humanity, the unity of Indonesia, and democratic life
led by wisdom of thoughts in deliberation amongst representatives of the people, and
achieving social justice for all the people in Indonesia” (Preamble)
- Tujuan negara:
"Melindungi segenap bangsa Indonesia dan seluruh tumpah darah Indonesia, memajukan
kesejahteraan umum, mencerdaskan kehidupan bangsa, melaksanakan ketertiban dunia
yang berdasarkan kemerdekaan, perdamaian abadi dan keadilan sosial." (preamble)
- Kedaulatan:
Article 1 (2):
“Sovereignty is in the hands of the people and is implemented according to this
Constitution” = popular sovereign + In the preamble
- Sistem pemerintahan:
Article 4 (1):
“The President of the Republic of Indonesia shall hold the power of government in
accordance to the Constitution” = presidential system
- Konstitutionalisme
Article 20, Article 24, etc
It means we have separation of power
- Susunan negara:
Article 1 (1)
“The State of Indonesia shall be a unitary state in the form of a republic” = unitary
 - HAM:
Chapter XA, article 28- 28J
- Amendment: article 37 (chapter xvi)
- Flag: article 35, language: article 36

TUTORIAL-1
• Ladoe Singo is trying to advocate the change of state form (republic) which is not
in accordance with Article 1(1) and Article 37(5) of the 1945 Constitution.
Moreover, it has been made clear that the form of the state shouldn’t be a form that
supports individualism, but a form that is based on what the majority of the people
want and need (a form that supports one declaration of rights, one declaration of
independence and one constitution republic).
• Lalu Masia wants another solution to Ladoe’s statement about how the people do
not enjoy prosperity despite how rich the natural resources in Indonesia are. Lalu
Masia does not want the change of state form as the solution. The right solution is
economic and social equity. This solution is in accordance with Article 34(1) and
(4) of the 1945 Constitution, in which these two clauses from Article 34 basically
explain how the national economy should result in just prosperity for the people.
• Jean Niji wants the government to re-review the 1945 Constitution and made
amendments to articles that can’t be changed in the 1945 Constitution. To make
these amendments, a proposal submitted by at least 1/3 of the total MPR members
is needed. However, it is very unlikely, since after all 4 amendments made to the
1945 Constitution, it is already good and clear enough. The judicial review
requested by Jean for the MK to make is unnecessary, because the provision about
the state form is already clear and straightforward.
https://www.mkri.id/index.php?page=web.PeraturanPIH&id=1&menu=6&status=1

TUTORIAL-2
Facts:
1. Coup d’etat
2. Drafting of New Constitution
3. President Veto Right within the Constitution
4. Judiciary Limited Power (Unable to Conduct Judicial Review)

Legal Issue:
1. Is limiting Judiciary Power on Judicial Review according to Constitutionalism
Doctrine/System?
2. Is the President Veto Right an example of Good Governance or according to Constitutionalism
Doctrine?
3. Is the President 2 x 5 Year Term without election in accordance with Constitutionalism?

Analysis:
It’s not in accordance with the Core Element of Constitutionalism even though the Judiciary is
independent the separation of power is not separated accordingly. President’s Veto Right is not an
example of good governance and isn’t according to the core element of constitutionalism which
includes separation of power and limiting the governing power.
The question on whether or not the President 2 x 5 Year Term on a direct one (for the first
president) is according to constitutionalism, is not according to constitutionalism since there is an
alternative to conduct election directly and leave Jean Zidan as Acting President or Interim
President rather than President for the first term and referring to Article 22E of Indonesian
Constitution 1945.
Additionally, Good Governance Principle is when Government must run well under the rule of
law, which in this case is still invoking skepticism whether the government of Negara Harapan is
under the rule of law or not.
Rule (Contrast with Indonesian Constitution):
To put the contrast between the two constitution, as stated above Article 22E of the Indonesian
Constitution 1945 which state:
(1) General elections shall be conducted in a direct, general, free, secret, honest, and fair manner
once every five years.
(2) General elections shall be conducted to elect the members of the DPR, DPD, the President and
Vice-President, and the Regional People's Representative Council (Dewan Perwakilan Rakyat
Daerah or DPRD).
As well as Article 1 Clause 2 of the Indonesian Constitution of 1945 which state:
” Sovereignty is in the hands of the people and is implemented according to this Constitution.”
Conclusion:
Constitution exists in the country, core element of constitutionalism which is limited government
is not applied accordingly due to the fact that even though the judiciary is independent but the
power that they have is not separated accordingly. The president veto right is not according to
good governance and constitutionalism because it gives more than enough power to the president
and not limiting the governing power.
Unlike Indonesia, which applies Good Governance and Constitutionalism Doctrine, which put
Negara Harapan in a lower place within the Good Governance and Constitutionalism Doctrine
level.

TUTORIAL-3
Facts:
- The shifts of voter support that have occurred have taken place more between different
parties in the same (secular-nationalist, Muslim-nationalist or Islamic)
Issue:
- Does this country need another amendment?
- How does the idea of Indonesia being a one-religion state contradict democracy and human
rights?

Rule:
- Preambule of the 1945 Constitution
- Article 1 of the 1945 Constitution
- Article 29 of the 1945 Constitution

Analysis:
If we look at our 1945 Constitution, it has been stipulated that Indonesia is a religious country with
different religions, but not a religion country. Indonesia is not based on one religion, but many
different religions. Indonesia shouldn’t be changed into a religion country, in this case, a Muslim
country. Even though constitutionalism will still apply, but if there is no consent from the people,
then it is against our 1945 Constitution and the doctrine of constitutionalism.

The idea of Indonesia being a one-religion state contradicts democracy and human rights,
specifically the right to believe in any belief and religion. Article 29 of the 1945 Constitution
stipulated that everyone has the right to believe in their own religion. Transforming Indonesia from
a religious state to a one-religion state would contradict this article and would contradict
democracy (since the majority disagree) and human rights (art.29). The direct election reflects
democracy sufficiently. Compared to the past, the latest election reflects democracy more
prominently.

The parties who want to bring major constitutional changes and establish another amendment
aren’t have no strong basis or urgency. After the four amendments that our constitution has gone
through, the constitution has already reflected democracy, rule of law and the doctrine of
constitutionalism. Therefore, the amendment or constitutional change that they demand can’t be
done right now. After the four amendments that our constitution has gone through, the constitution
has already reflected democracy, rule of law and the doctrine of constitutionalism.

(Additional—hypothetical situation about the amendment: When the atheist population increases
and they demand an amendment on the art. 29 of the 1945 Constitution, there’s a high possibility
that their demand won’t be accepted. This is because the atheist community is minority. One of
the downsides of democracy is that the minority will have to suffer from the law that benefits the
majority)

Conclusion:
- Indonesia’s 1945 Constitution doesn’t need an amendment for now.
- The idea of Indonesia being a one-religion state contradicts democracy and human rights.
TUTORIAL-4
Facts scenario 1:
- Jatim is declared as Black Zone during the pandemic of MOVID-20 by the central government
- Jatim task force and Jatim local government follow the zoning protocols
Facts scenario 2:
- Many municipalities and provinces don’t follow the president’s instructions, policies and
orders concerning the MOVID-20 pandemic
Rule:
- 1945 Constitution
- Law No. 30/2014 on Government Administration, amended by Law 11/2020
- Law No.2/2020
Assignments:
1. Scenario 1:
i. Is the zoning policy under the authority of central government or provincial government
(provincial task force of MOVID-20)?
ii. Are the protocols and implementations of MOVID-20 pandemic regulations under the authority
of central government or provincial government (provincial task force of MOVID-20)?
Scenario 2:
i. Must the local government adhere to the president’s instruction in this case?
ii. Can the regulation asked by the president be implemented in every region/area/municipal of
Indonesia?
SCENARIO 1
The zoning policy of each province is under the authority of provincial government, carried out
under the president’s instruction. In the MOVID-20 pandemic, the decision on the protocols in a
certain area can be decided by the local government, as long as it is in accordance with Law
No.30/2014. Local self-government is chosen freely while still recognizing the supremacy of
national government. given power, discretion, and responsibility without being controlled by a
higher power. Local government organizes activities based on statutory regulations a government
agency that is elected by the local population and has the authority to regulate and manage its own
affairs based on laws and regulations and still recognizes national supremacy and sovereignty.
(Additional: In relation to Montesquieu’s theory and regional autonomy; a mechanism to regulate
state power that is distributed vertically in a top-down relationship).
SCENARIO 2
Yes, they must, since pandemic is an urgent situation that threatens the security of the nation. Since
the president’s instruction is for the benefit of each area, the local governments should adhere it.
Local governments who ignored president’s instructions will get warnings. They will also get
social consequences, and in the MOVID-20 pandemic case, the legal consequences will be the
spread of the virus in the province/area.
The regulation asked by the president to overcome the pandemic situation can be implemented,
even though it is difficult and challenging. Supervisions can be done by the police force, security
force and even the military force.
2. As a unitary state, Indonesia is divided into provinces, and those provinces are divided into
municipalities and regencies. This is stated in art.18(1) of the 1945 Constitution. Each unitary state
has different systems and in Indonesia, we apply the layering system (top- down system).
Therefore, as a unitary state, Indonesia has central government, provincial government, regional
government and municipal government.

In Scenario 1, the central government is the central government of Indonesia. The provincial
government is the MOVID-20 task force in Jatim, with Dr, Ahmad as the representative.
Central government has the highest power. However, in Indonesia, the constitutionalism doctrine
is applied, therefore, the power is distributed to local governments through attribution, delegation
and mandate. The authority basically belongs to the central government, the regions are given the
right and obligation to manage and administer part of the government's authority which is
delegated or handed over
3. Like what has been explained above, President is part of the government. The relation between
President and the head of local government is vertical, since central government is higher than
local government. the central government and local governments still have hierarchical lines of
command and relationships.
In Scenario 2, the president is the central government and the regional/provincial/municipal
governments are the local government. However, local government has autonomy over their own
region/municipal/area. Therefore, in Scenario 2, although the local government has their own
autonomy, they still need to adhere to the president’s instruction, since a pandemic is an urgent
situation that threatens the national security. Although the local government can make their own
decision and policy, they still need to recognize the supremacy of central government based on
statutory regulations. Moreover, Indonesia applies Montesquieu’s theory and regional autonomy;
a mechanism to regulate state power that is distributed vertically in a top-down relationship. In the
case of Scenario 2, the local government is the subordinate of the central government.
Comparing to COVID-19 situation (real life situation), the President of Indonesia issued the Law
No.2/2020. In this case, the local government must adhere the law regarding the implementation
of protocols and regulations of the pandemic situation. Therefore, for the MOVID-20 situation, a
law should also be issued first.

4. Basing on the principles of decentralization, deconcentration and basis of auxiliary task (article
18(2)), the local government should follow the regulations given by the president if it is stated or
issued by the law as stipulated in the article 18 (5) of the Constitution. Even though local
governments have the autonomy to regulate and manage the interests of the community, they still
need to adhere and communicate with the central government since Indonesia adheres to the
principle of unitary state where highest authority holder is the central government. the central
government does not lose its authority because subordinate agencies carry out tasks on behalf of
the central government. Ultimately, the district has to adhere to the presidents instruction. (Basis
of auxiliary task). In this case, local government have the power and authority to make, execute,
and issue their own regulations. Thus, pemerintahan daerah can first do strategize planning of
regulations and protocols they want to implement that are suitable with the community under their
authority. After that they can do drafting of regulations and protocols. after finalizing the drafting,
then they can use their authority to implement those protocols and regulations in the area.

CONSTITUTIONALISM, GOOD GOVERNANCE, RULE OF LAW

A. Idea of Constitutionalism
Branches of government to limit power by separation of power to avoid absolutism. Main
idea of constitutionalism in constitution:
• In the provision of the constitution
• Explicitly separating the powers of government
• Evidence that Indonesian government has the main idea of constitutionalism:
Chapter 3; president hold the executive power as according to the constitution
 • Article 20; the constitution explicitly gives the power of the legislative to the DPR/
peoples representative
• Article 24; constitution make different provisions for executive, legislative, and
judiciary
• Chapter 9; states who has the power of judiciary-Article 24-Mahkamah Agung

B. Dual Model Judiciary System

• Indonesia, unlike other states who have the supreme court as an institution holding
the judiciary power, applies a dual model judiciary system after the amendment.
• After the amendment process, Indonesia has two institutions holding the judiciary
power. Supreme court and Constitutional court.
• Ex: Malaysia-single model of judiciary-judicial supreme court has competent to
conduct judicial review with law of constitution on the basis of the constitution.
Compare to Indonesia, we have dual model of judiciary branch which have both
different competent and jurisdiction but are both equal.
• Constitutional court: Mainly to prevent and preserve constitutionalism value. Law
has to be in accordance with the provision of the constitution.

C. Independence of Judiciary
• Except for the idea of limiting power for the purpose of avoiding abuse of power
by separation of power, there are also independent judicial
• A country with more degree of intervention in court=no survival, that is why there
is an independent judiciary and separation of power
• Constitution explicitly protects judicial independence-Article 24 (1)

D. Protection of the Fundamental Rights

• Constitutional rights are human rights protected in the constitution
• Article 27, 28, etc. =shows that the government has the commitment to uphold and
protect the fundamental rights, and those rights are guaranteed by the constitution
E. Amendment of the Constitution
 • Limitation on the presidential term of office stipulation is added after the
amendment
• Shows strong commitment to guarantee the constitutionalism value
• Before the amendment there is no limitation of the presidential term of office, but
now article 7 is set up to prevent abuse of power
• Longer power term of the presidential term of office can invoke the abuse of power
by the president (Previous Presidential term experience-32 years of Soeharto
regime)
• Case study=idea of extending presidential term 2024 debate
• Indication of obstructing constitutionalism & justice, gradual process of decreasing
the constitution (unconstitutional act)

F. Art.7 of the 1945 Constitution: Is It Clear or Ambiguous?

• From the article, there could be questions raised such as; Can the president be re-
elected again for the vice president?
• Interpretation of article 7 could be: 2 terms of the presidential office and 2 terms of
vice-presidential office (debated)
• Constitution belongs to the people, consequence; freely have any kind of
interpretation. However, if your interpretation has another legal consequence or
rose disputes, then the right to interpret the constitution belongs to the constitutional
right

G. Method of Interpretation of the Constitution

• Can be freely interpreted but needs to be in accordance with the intention of the
maker of the constitutional amendment (naskah komprehensif atau risalah siding);
method of originalism
• Non-originalism; leaving behind the intention of the maker of the constitution
while still sticking to the text (cannot manipulate the constitution) = futuristic
method to look at the consequences of the interpretation

H. Constitution under Occupation

 • Ukraine is a sovereign country, even under war or occupation.
• As long as the country is sovereign and recognized by the other states, then the
constitution is still enforced.
• Under any kind of emergency, the constitution is still the constitution because it is
silent about an emergency situation (ex: Indonesia constitution is silent if there is a
war)

I. Rule of law
• Is Indonesia a rule of law state? Reference the constitution.
• Article 1(3): Explicitly mention that we are a state of rule of law (negara hukum)
• Characters of being rule of law

Asas legalitas/legality principles-everything has to be in accordance with the law (ada

undang-undangnya). Referring to the government act; every act of the ruler has to be in
accordance with the UU. The government has discretion right in the framework of asas-
asas umum pemerintahan yang baik.

J. Does every government act needs to be by the law?

• In some of the provisions, the provision prescribes pasal 6 (5) that constitution strengthened
the commitment of the rule of law. The government intends that everything has to be by
law/regulated by law. Constitution reference law as a source.
• Article 15; constitutional basis that any kind of presidential act has to be by law
• Article 11; there is constitutionalism value. There is a separation of power of the president
and DPR. Alongside, there are the check mechanisms, “approval of DPR.”

K. Rule of law indication in the constitution

• Article 11 (3); has to be in accordance with the law “diatur dengan undang-undang”
• Harus berbasis dari undang-undang
• Rule of law and constitutionalism support each other to have good governance
 L. Good governance principles
• Firstly, promoted as TARIF principle; transparency, accountability, responsibility, …
• Participation; democracy-government from the people, to the people, for the people
(citizens participation)
• Good participation mechanisms=berdasarkan pada framework of good governance
• Quite new doctrine, because of economic crisis, one of organization- IMF came up with
promotion of good governance to many developing countries which at the time have
significant impact
• Improve government system

DEMOCRACY AND HUMAN RIGHTS IN CONSTITUTION: DOCTRINE OF GOOD

GOVERNANCE
A. Good Governance Continuation
• Good government will never be good government if there is no good governance
• A system is built up in a good mechanism
• In accordance to principles of good government (tata Kelola yang baik)

B. Book Reference
By Henk Addink, well known for work of good governance

C. Content of Book
 • What is the relation of good governance to human rights, democracy, law, etc.
(make the state better)
• History of good governance
• TARIF ( principles of transparency, accountability, responsibility, independency,
fairness)=beginning of the time when it was developed, but now it has become more
modern or developed.

D. Objective
Whole concept of rule of law, good governance, constitutionalism, democracy is the
principle that make the state a modern state and a better state

E. Good governance as a Global Value/Principle

• If a state is established in a bad government (tatanan jelek) where there is no
transparency, public participation, no responsibility of the ruler like legal or
political responsibility, independency of judiciary and accountability, the state
would not be improved.
• Need of good governance: A better system of State (effective). Don’t want state to
be corrupt and have bad governance

F. Development of Good Governance Principles

• Chapter 2 in the book (everything is connected)
• Principle of Properness
• Principle of Participation (quite new, as a consequence of the principle of
transparency)=if only transparency established without participation principle it
would be a bad government
• Principle of Democracy
• Principle of Human Rights
• Principle of Accountability
• European Governance also apply good governance (EU)=good governance is a
requirement to be applied to be a member of the EU as according to the standard of
EU (principles of good governance must be applied)
 G. Universal Value of Human Rights
Good governance must apply and respect human rights

H. People is the Key for Everything

• Democracy (direct or representative)
• Sovereignty of the people
• For the people, by the people, from the people
• Public Participation is a must for a democratic state

I. Indonesia Has:
• Good governance
• Democracy
• Participation Principle
• Concept of Sovereignty of the People

UUD 1945: ANALYZE GOOD GOVERNANCE

A. Democracy Principle (Principle of Participation)
• Direct Participation
• People themselves choose and make their own choice with no
intervention=SOVEREIGNTY OF THE PEOPLE
• Article 22 about Pemilihan Umum -General Election
• Article 6A paragraph 1-President and Vice President “dipilih langsung oleh
rakyat” using the mechanism of election
• Ketika tidak ada keterbukaan tidak mungkin ada partisipasi
• Right to be informed is one of the condition to get the people participation (jika
rakyat mendapat 0 informasi, maka bagaimana rakyat berpartisipasi)
• Keterbukaan yang meluas bagi rakyat

B. Concept of Sovereignty of the People

 • Article 1 section 2
• People holding the highest power in the system
• Logikanya adalah “Bagaimana rakyat dapat berdaulat atau memegang kekuasaan
tertinggi jika tidak ada partisipasi?”
• So, if people hold the highest power, then they should also participate in the matter
of the state
• Without the concept of the sovereignty of the people, that state cannot be a
democratic state=that is why Indonesia have article 1 section 2 that explains law is
by the people (sovereignty)

C. UU CIPTA KERJA
• Constitutional court strongly affirm and put the standard of participation which is
called MEANINGFUL PARTICIPATION
• People that have a significant impact whether by law or state policy has to
participate by direct participation for the people, right to be heard, in accordance to
the principle of good governance which is transparency
• At the time there was less transparency
• Right to be involved=people are to be involved in states matter
• Right to be heard-who needs to hear the people? THE RULER & GOVERNMENT
• What needs to be heard? aspirations of the people

D. UU IKN (Ibu Kota Negara)

• Law on the capital city
• Process of having an idea to relocate the capital city to another island
• But the Idea gained so much controversy because people did not have much
information about this-little participation of people
• Law of capital city: only selected people have the access to participate in delivering
their ideas or opinion about relocation

E. Principle of Human Rights

 • Article 28
• Universal value
• Constitutional rights, any violation to this, anyone can claim their judicial rights to
the court (judicial review)
• Jika warga negara Indonesia merasa dirugikan haknya oleh sebuah UU maka
warga negara dapat mengajukan judicial review ke constitutional court
• Untuk negara asing: mereka belum punya legal standing di konstitusi
• Konstitusi sekarang hanya recognized warga negara Indonesia saja
• Orang asing tidak dapat mengajukan judicial review

F. Continuation; Warga Asing

• However, you cannot say that orang asing akan mendapatkan less protection of
constitutional court, because the result of putusan nanti akan berlaku bagi semua

G. What Are Our Constitutional Rights According to UU (Constitution)?

• Have to have a precise answer
• Equality before the law
• Not only written in the constitution but mungkin saja lahir dari putusan
Mahakamah Konstitusi.
• Contohnya;
§ Right to have a presumption of Innocence treatment; right of any person in
Indonesia (citizen).
§ Hak untuk mendapatkan peradilan yang adil (due process of law)
• Can be related to article 27; equality before the law, right to access due process of
law

H. Rights in Chapter XA
§ Article 27; Hak untuk bekerja (Right to Work)
§ Article 28; Freedom to deliver opinion- written or unwritten
§ Right to marriage
 § Right to have kids (in other states, there could be a limit in having a child, like only
one and you are prohibited to have more than 2 kids)
§ Article 28B; Children also have constitutional rights; protection from sexual
harassment, discrimination, is against their constitutional rights that are protected
by the constitution
§ Article 28H; access to public health- if there is a limitation for access to get medical
service (ex: pandemic situation)
§ Constitutional guarantee rights to choose kewarganegaraan
§ Jika ada yang berpindah kewarganegaraan, it is about their constitutional rights,
so no one can force or intervene
§ Example: Singer-Anggun; choose to get France’s citizenship
§ Constitutional Issue:
§ Article 28H (1) - if your environment are destructed, it is within your constitutional
rights to invoke right to have clean environment
§ Article 28F; right to communicate-jika ada yang membatasi komunikasi, maka itu
pelanggaran constitutional right kita
§ Jika teman block anda dan konsekuensinya tidak bisa berkomunikasi, maka itu
sebenarnya melanggar constitutional right kita untuk berkomunikasi

I. Theory of State Exception

§ Pengecualian
§ Very strict requirements

SELF STUDY-1
1. Apa yang disebut kekuasaan dalam suatu negara?
Power is within which one person could impose his will, regardless of any resistance. We
can simplify it by saying that power is the ability to influence control on people. There are
many sources of power. Sources of power include: the people, constitution, parliamentary
laws, conventions, knowledge and capability, organization, social status, religious status,
control over mass media, economic position, charismatic personality, faith, skill and
 authority. However, according to theocracy theory, the source of state power is from God.
This theory was taught in Middle Ages era.

The main source of state power is from the people. Generally, state power can be defined
as a social power, an organized power that expresses and realizes the governors' will as
a universal obligatory will, a coercive power that is unique inside the state, and a sovereign
power.

Based on French and Raven's bases of Power, power is divided into five separate and
distinct forms. They identified those five bases of power as coercive, reward, legitimate,
referent, and expert.

In Indonesia, state power in stipulated in the Constitution. According to the 1945

Constitution, the state power is divided into 3: executive, legislative and judiciary. Each of
them has their own power (authority). The authority of each branch of power is stipulated
in the 1945 Constitution. The division of power in the government system is an attempt to
check and balance the interaction of institutions in the governance activity, and to prevent
power from being held by only one hand. The amendment of The Indonesian Constitution
1945 by the Indonesian government is a step toward representing democracy and the state
constitution in accordance with the constitutional system. The Amendment includes the
same revisions to the Indonesian constitution concerning the check and balance of power.

2. Apa saja teori kekuasaan dalam pemikiran kenegaraan?

The history of state power has existed since centuries ago. Scholars, including John Locke
and Montesquieu, have presented theories and formulations of various types of state power.
John Locke claimed that legitimate government is based on the idea of separation of
powers. First and foremost of these is the legislative power. In his work, he stated that “the
legislative power has a right to direct how the force of the commonwealth shall be
employed for preserving the community and its individual members.” He also stated in his
work that “the legislative power is put into the hands of a number of people who have when
 assembled a power to make laws, after which they are to separate again and are to be subject
to the laws they have made.” The second one is executive power. The executive power is
then charged with enforcing the law as it is applied in specific cases. The last one is
federative power. It consists of the right to act internationally according to the law of
nature.

Montesquieu was an expert in France law. He put forward his views on State power. He
pointed out that State power can be separated into three major powers: The legislative
power (the power in shaping laws), the executive power (the power in exercising or
enforcing the legislation) and judicial power (the power in the exercise of judicial power).
This idea of separation of power by Montesquieu was later known as Trias Politica theory.

Indonesia applies popular sovereignty, which means sovereignty is in the hands of the
people. In the 1945 Constitution, the popular sovereignty is then divided horizontally
through separation of power into equal branches of power and implementing the principle
of checks and balances. The three branches of power—executive, legislative and
judiciary—are equal and interact or control each other through the checks and balances
principle.

3. Bagaimana perkembangan konsep dan konstitusionalisme pemisahan dan pembagian

dalam kekuasaan di Indonesia? Jelaskan dengan merujuk pada para ahli dibidang konstitusi
Indonesia!
In Miriam Budiarjo’s literature, it is mentioned that constitutionalism governs the
application of the rule of law in the interaction between persons and governments. Because
there are pre-determined limits on government authority, constitutionalism creates a
scenario that might foster emotions of safety. In Jimly Ashiddique’s literature, he
mentioned that constitutionalism is seen as an ideology or paradigm of thinking about
living together in an organization based on collective agreements or social agreements
which are usually idealized written in a codified manuscript. I agree with both of their
opinions about constitutionalism, because it reflects the history of constitutionalism in
Indonesia.
 In Article 1 paragraph (2) of the 1945 Constitution (new editor) it is stipulated,
"Sovereignty is in the hands of the people and is exercised according to Constitution". This
article is a constitutional article which contains the understanding constitutionalism. The
people who hold the highest sovereignty is bound by the constitution. Sovereignty of the
people is exercised according to the constitution, cannot be executed on the basis of the
ruling of the mob. Separation of power is also stipulated within the 1945 Constitution. The
constitution states the function of each power branch (executive, legislative and juciary).
This shows that constitutionalism has been upheld in Indonesia since the establishment of
the 1945 Constitution.

In conclusion, ever since the establishment of the 1945 Constitution, Indonesia has already
started to apply the constitutionalism doctrine.

4. Merefleksikan dalam perkembangan politik kenegaraan modern, bagaimana pergeseran

kekuasaan dalam Sistem Ketatanegaraan dunia di khususnya Indonesia menurut UUD NRI
1945? Jelaskan dengan menjelaskan pengaturan dalam UUD NRI 1945!

1945 pre-amendment Constitution placed the legislative power in the President, and the
DPR only gave their approval. It is listed in Article 5 paragraph (1) of the 1945 Constitution
Pre-Amendment: President stretches power to make laws with the approval of the House
of Representatives People. Article 20 paragraph (1) states: Every law requires approval of
the House of Representatives. From here it can be seen that the Law The 1945 basis adhered
to the division system power and not separation power, in the sense that one organ can also
perform the functions of organs another. President as head of the executive also performed
legislative function.
In the 1st Amendment, which was on October 14-20, 1999, the legislative power was shifted
from the President to the DPR, because with the President holding both executive and
legislative power, there was redundancy. According to me, with the shifting of legislative
power to the DPR, the redundancy was eliminated and the purpose of separation of power
is upheld. Each branch of power, executive, legislative and judiciary, has their own
 function and they function as equal and control each other with the checks and balances
principle.

5. Bagaimana praktek dalam pergeseran kekuasaan di Indonesia, apakah mencerminkan

prinsip-prinsip Negara Hukum Indonesia?

Indonesia applies the rule of law. With applying the rule of law, there are a few principles
that follow it. One of the principles is limitation of power. Before the amendment, the
President held two functions or powers, which are executive and legislative functions and
power. This is against the limitation of power principle. However, after the first
amendment, when the legislative power is then shifted to the DPR, the limitation of power
principle is upheld, and this decision is in accordance with the rule of law.

I believe that the shifting of legislative power from President to DPR is the right decision,
for it eliminates the redundancy and reflects the rule of law principle and the limitation of
law principle.

6. Jelaskan relevansi pergeseran kekuasaan di Indonesia dengan prinsip Konstitutionalism

dan Negara Hukum Indonesia dalam UUD NRI 1945!

Indonesia is a democratic country that adheres to constitutionalism. The emergence of

constitutionalism began with the use of the constitution as law in state administration.
Constitutionalism regulates the implementation of the rule of law. Constitutionalism
presents a situation that can foster a sense of security, because there are restrictions on the
authority of the government that have been determined in advance.

Like what has been mentioned before, with the applying of the rule of law, there are a few
principles that follow it. One of the principles is limitation of power. With the legislative
power shifted from the president to the DPR, it is in accordance with the limitation of
power. Since it is in accordance with the limitation of power, it is in accordance with the
rule of law too.
 The main objective of constitutionalism is to limit power and prevent absolutism. With the
legislative power shifted from the president to the DPR, redundancy and absolutism are
prevented. In conclusion, the shifting of power is in accordance with constitutionalism.

7. Bagaimana dengan PRAKTEK kekuasaan di tengah tafsir kekuasaan yang cenderung

terjadinya penyalahgunaan kekuasaan? (studi kasus bekerjanya oligarki kekuasaan)
Jelaskan dengan memberi contoh yang saudara anggap relevan!

Oligarchy is a system of government that is run by several people in power, either from
certain groups or groups. Oligarchy has a negative connotation. According to Winters,
oligarchy can be divided into two dimensions. The first dimension, oligarchy has a base of
power and material wealth that is very difficult to break down and balance. While the
second dimension explains that oligarchs have a fairly broad and systemic reach of power,
even though they have minority status in a community. So, it can be concluded that
oligarchic power must have a power base that is difficult to break down and the reach must
be systemic. There are a few oligarchies that still exist in Indonesia, some of them are:
• Commander Oligarchy
This oligarchy emerges by coercive power or by direct violence. Oligarchy
commanders have soldiers and weapons to seize resources directly from the power
of other oligarchs. So, it can be said that the accumulation of wealth is carried out
by subjugating one commander with another, as a result the most dominant threat
occurs in property claims rather than income.
• Sultanistic Oligarchy
An oligarchy that occurs when the monopoly of the means of coercion lies in the
hands of the oligarchs. There is a relationship between the oligarchy (patron-client)
and the ruling oligarchy. The Sultanistic oligarchs gave authority and violence to
the main ruler only, while the other oligarchs only depended on the defense of their
wealth and property to the main or sole oligarchy. This has happened in Indonesia
under Suharto's leadership.
 Both types of oligarchy happened and probably is still happening in Indonesia, but
quietly. Oligarchy is against our constitution and is against the constitutionalism
doctrine. The government should eliminate the oligarchy practices in Indonesia as
soon as possible to maintain the 1945 Constitution and constitutionalism integrity
in Indonesia. Moreover, oligarchy practices also harm human rights and equal
rights in the society.

https://www.mkri.id/index.php?page=web.PeraturanPIH&id=1&menu=6&status=
1

SELF-STUDY 2
1. Adakah fungsi lain yg dimiliki oleh badan perwakilan selain fungsi legislasi?
Representative bodies have other functions beside legislation, even though legislation is
one of their most essential functions. Their legislative function makes them a reflection of
contemporary political representation, which means they must be able to reflect the
existence of executive institutions within themselves, the context of representation needed
and desired by the people, and the people's voice. Their primary function is to overcome
societal challenges and meet the many different needs of various groups of people.

To sum up the functions of the representative bodies, these are their functions explained:

(1) Representation
Like what has been mentioned above, the primary function is to meet the needs of various
groups of people and to reflect the people’s voice. However, in reality, the interest of their
own political party and the national interest are more prioritized than the needs or interests
of the group of people they represent.
(2) Deliberation
The representative bodies should disseminate information on national issues through public
discussions. This function is inextricably linked to their representation function. However,
the nature of the deliberation function is somehow theatrical. The people are allowed to
 participate in the process of policy- making, they have no actual power or influence on the
decisions (policies). Therefore, people have been trying to demand a more intense public
participation in the process of making public policies. This problem of participation
emerged due to the democracy system in Indonesia. Indonesia applies representative
democracy. The representative democracy in Indonesia has proven to be ineffective and
has been called as “the hijacking of democracy by the elites.”
(3) Legislation
Our 1945 Constitution emphasizes on the legislation function of the representative body.
The function of legislation is even more emphasized in liberal countries to prevent the
absolutism of executive power. However, the function of legislation these days are slowly
being taken over by executive institutions.
(4) Budgeting
Budgeting is one of the very first functions of the representative body. But just like the
legislation function, it is actually dominated by the executive power. The draft of state
budget can only be put in force after it is passed (validated) by the executive institution.
(5) Supervision
This function is to prevent absolutism. The representative body has supervision function
over the executive institutions. They supervise government activity and ensure the quality
of the government. This function is carried out by raising questions, establishing debates
and carrying out investigations.
(6) Forming Government
The rise and fall of the government are determined by the political dynamic of the
parliament. The majority group in the parliament is given the power (authority) to form
cabinets.
(7) Elite Recruitment and Socialization
The function of boosting their own career and reputation in case a government falls and to
fill in the positions in the executive institutions.

2. Mengapa terdapat perwakilan berdasarkan populasi?

The model and system of representation in a state should be customized to fit in the reality
in the state. States with larger population have different realities compared with states who
 have smaller population. States with larger population are often more socially heterogenic,
with various groups of people and diverse aspirations. States with smaller population are
usually the opposite. A large population has implications for comparing the number of
representatives, making it hard for the community to monitor whether their representatives
are pursuing their interests. Therefore, states with a large population need more members
of representatives. States with smaller population, however, need less members since their
aspirations and needs of the people are generally homogenic.

Therefore, we can conclude that a representative body model and system based on
population (population representation) is needed. Larger, more populated states usually
apply the bicameral model, and smaller, less populates states often apply the unicameral
model.

3. Mengapa terdapat perwakilan berbasis teritorial disamping basis populasi? Apa makna
basis teritorial?
The means of the territorial basis is territorial representation (regional representation). In
Indonesia, with a very limited constitutional position and authority, the establishment of
DPD is one of the efforts to uphold regional representation. The DPD is the chamber that
deals with the representation of people in a specific territory with elements of interest of
social class and interest of economy.

Territorial representation is important, especially in Indonesia. The general chamber (DPR

and MPR) face difficulties in truly representing the voices of the people territorially and
fulfill their specific needs. Therefore, representation based on territorial is conducted,
hence the formation of DPD.

Furthermore, in the context of representative body, three types of representation should be

accommodated, which are: population representation, territorial representation and
descriptive representation (especially for communities or groups that are not represented
in the general election process).
4. Apa kelebihan dan kekurangan model unikameral?
In the unicameral model, the representative body is not divided into House of
Representatives, House of Commons, Senate, and others. This model is often applied by
small unitary states who are socially homogenic (the aspirations of the people are
homogenic in general). Examples of countries that apply the unicameral model are
Hungary, Sweden and New Zealand. The advantages of the unicameral model are:
• There are fewer members in the body. Therefore, the people can supervise the
activity more easily.
• Lower cost for the government.
• Bigger and clearer responsibility, where the legislative body won’t be able to blame
other assembly/council when the needs of the people are not fulfilled or ignored.
• Bills are easier to be passed, since there is only one body needed to adopt the bill.

The disadvantages of the unicameral model are:

• Less thorough than states with the bicameral model when it comes to national or
state issues.
• Unsuitable for heterogenic states, large or densely-populated states and federal
states.
• Regional interests are not represented directly.

5. Mengapa terdapat lebih dari 1 kamar dalam parlemen?

There are a few reasons to why there’s more than one chamer in a parliament. C.F. Strong
explained the reasons in his book titled Modern Political Cconstitution:
(1) The perception of unchecked power on the part of a single Assembly, conscious of
having only itself to consult, may lead to abuse of authority and tyranny.
(2) The should be a core of opposition to the pre-dominant power in the state at any
specified instant, whether it be the people as a whole or a political party supported by a
majority of voters.
(3) The establishment of a Second Chamber restricts the passage of hasty and ill-
considered legislation by a single house.
 (4) In the case of a federal state, there is a specific case for a Second Chamber that is
organized in such a way as to integrate the federal principle or to incorporate the common
will of each state as distinct from that of the federation as a whole.

Therefore, we can conclude that a second chamber (bicameral mode) exists to help the
representation of various groups of people so that their needs are equally fulfilled. More
than one chamber exists in a parliament to also build a checks and balances mechanism.

6. Apa kelebihan dan kekurangan model bikameral?

In the bicameral model, the structure of the body is divided into two chambers, for example:
House of Representatives, House of Commons, Chamber of Deputies, and others. Federal
states apply the bicameral model since a federal state has a two-tiered power structure.
There are, however, unitary states who apply the bicameral model.

Bicameralism exists to ensure that the various groups of people in a densely-populated,

large state are met and fulfilled. The advantages of the bicameral model are:
(1) Facilitates a deliberative approach to legislation drafting.
(2) Averts the passage of defective or unfair legislation.
(3) Officially represents a diverse range of voters (e.g., state, region, ethnicity, or class).
(4) Exercise better supervision or control over the executive institutions.

The disadvantages of bicameral model:

(1) Higher cost.
(2) Disputes between the two assemblies often resulted in dead-locked stalemates.
(3) There are more members compared to unicameral model, so supervision is difficult for
the people (it is difficult for the people to supervise the activity of the body).

7. Apakah hak angket, interpelasi dan menyatakan pendapat merupakan hak kelembagaan
atau hak individu anggota parlemen?
DPR is one of the legislative institutions in Indonesia. The DPR has the task of making
laws, supervising the implementation of laws, and preparing budgets with the government.
 In carrying out its duties as a representative of the people, the DPR has three main rights,
namely:
[The rights of the DPR in Article 77 paragraph (1) of Law Number 27 of 2009 on the MPR,
DPR, DPD and DPRD ("Law 27/2009") are the right]
a. interpellation
b. hak angket
c. expressing opinion

These rights are not individual rights, but institutional rights that the DPR members have
as an institution in Indonesia.

8. Apakah hak angket sama dengan mosi tidak percaya?

The rights of the DPR in Article 77 paragraph (1) of Law Number 27 of 2009 on the MPR,
DPR, DPD and DPRD ("Law 27/2009") are the right:
a. interpellation
b. hak angket
c. expressing opinion

A vote of confidence is a motion that states that people's representatives believe in

government policies (organizational management, etc.), while a motion of no

SUSUNAN NEGARA DAN BENTUK NEGARA

Constitutional issues in Indonesia:
- Penundaan Pemilu
- IKN (Because when it comes to capital city, it is explicitly written in some of the
constitutions of some countries, like the capital city of country X is… If there is a
relocation, there will be a constitutional question. However, in Indonesian constitution,
there is no provision about where the capital city of Indonesia is. But, we have Law
about our capital city. Art. 18B of UUD talks about special region, and we recognize a
capital city as a special region (capital city is not explicitly written in UUD, but it is written
in Law). So, the issue about capital city is legal issue and can be a constitutional issue)
 [Art. 18B (1): The State shall recognize and respect units of regional governments of
specific or special nature which shall be regulated by laws.]

Two types of state: unitary and federal state. Indonesia is a unitary state (written in the
Constitution). The provisions in Constitution that state unitary state:
- Article 1 (1)
“The State of Indonesia shall be a unitary state in the form of a republic”
2 concepts: unitary state (state form); republic state (government form). This article
makes sure we are a unitary state. What kind of unitary state are we? The answer is in
art.18(1) of the UUD.
- Article 18 (1)
“The Unitary State of Republic of Indonesia shall be divided into provinces and those
provinces shall be divided into regencies (kabupaten) and municipalities (kota), each of
which shall have regional authorities which shall be regulated by law”
This is the kind of unitary state that Indonesia is. We are a state of unitary divided into
provinces which are divided into regencies and municipalities. These regencies and
municipalities have their own regional governments. Art. 18(1) explains the structure of
our unitary state (implies the structure of our state).
- Article 18B (2)
The State shall recognize and respect entities of the adat law societies along with their
traditional rights to the extent they still exist and are in accordance with the development
of the society and the principle of the Unitary State of the Republic of Indonesia, which
shall be regulated by laws.
Unitary state is a principle (it’s one of the basic principles of the Indonesia constitution).
Any kind of community has to be in accordance with the principle of unitary state.
Strengthen the respect of differences (e.g. traditions, religions, etc) in a unitary state.
Article 18B (2) implies that Indonesia as a unitary state has a lot of diversities and the
uniformity is really low, because there are many differences. Our intention of the concept
of unitary state is about respecting differences. The unitary state of Indonesia is very
humane and diverse, and the unitary concept is an umbrella for all those diversities and
differences.
 - Article 25A
“The Unitary State of the Republic of Indonesia is an archipelagic state having an
Archipelagic (Nusantara) character with a territory, the borders and rights of which shall
be stipulated by laws.”
This article explains about the reality (real geographic condition) of the unitary state of
Indonesia. The territories of Indonesia are stipulated in Law. Other states’ constitutions
explicitly stipulate the borders, unlike Indonesian Constitution. State territory of Indonesia
is not stipulated in the Constitution, but in Law. The details of state territory is not
prescribed in the Constitution, but in Law. This article only defines the geographical idea
of our unitary state, which is archipelagic (unlike other unitary states that are landlocked,
like Uzbekistan). Indonesia is called “the state of 1000 islands”.
- Article 37 (5)
Particularly regarding the form of the Unitary State of the Republic of Indonesia no
amendment can be made.
The principle of unitary state is like being ‘sacred’, which means that it can’t be changed
(unamendable provision). Every state has their own unamendable provisions. In Indonesia,
it is the provisions about unitary state. The consequence of unamendable provision: can’t
be changed in any kind of amendment. Referring to art.1(1) of UUD [2 concepts], does this
mean that not only the unitary state concept that can’t be changed, but also the concept of
republic state in Indonesia? Multi-interpretation. Can be the republic also can’t be changed
(referring to originalism—the original intent of our founding fathers and constitution
makers, and the amendments), can be only the unitary can’t be changed but the republic
can (Republic of Indonesia is the name of our country—non-originalism; grammatical
approach). We can also use futuristic (if we change to monarchy, Indonesian state might
fall) and conceptual interpretation method to answer this question.

REPRESENTATIVE BODY
If we are discussing about representative body, where can we find in the Constitution? Article 1
(2). If we are speaking about representative body, we are talking about representative democracy
which resulted from direct democracy. Representative body is the consequent of the state with
direct democracy, resulting in indirect democracy. Indonesia applies direct democracy by choosing
representatives of the people. If we are speaking about representative body, is it always about the
legislative and the parliament? Is executive also a representative body?

Direct democracy resulting in indirect democracy birthed the executive institution (president, etc.).
Is the president a representative body? President is also the representative of the people. There’s a
consequence for “kedaulatan rakyat”. However, for running the state administration, it is
impossible for all the people to participate directly and that is why we choose a representative.
Apakah presiden merepresentasikan keinginan rakyat?

Representative body is often referred to the parliament. Why? Why not the legislative? If we trace
back to Middle Ages, the term of parliament came up during the Enlightenment Era. There’s
executive and legislative as forums of people representation for power equality. Parliament—what
is it a about? There’s a French word “parler” which means “speak”. So, parliament is like a forum
to speak up, to channel the aspirations of the people. It’s impossible for every citizen to directly
deliver their critiques. The parliament is the representative of the people untuk terlibat dalam
government. Executive as representative body: representing people for running the government.
Parliament: representing people by facilitating all the people’s interests or aspirations or critiques.
The 1945 Constitution: sovereignty of the people, which means any institution represents the
people. Why parliament is inherently attached as legislative? Parliament is a forum to speak
(representing the people). Because, in a state under democracy system, there should not only one
hand to make law, but the power to make law has to be attached in the institution that truly
represent the people (which is the parliament). Why is executive as a counterpart of the parliament?
Executive execute the law, need to be a counterpart to execute law and act.

In U.S., there’s no intervention of President in law-making process, but the President is given veto
rights. In Indonesia, no veto rights but have joint discussion process. President is the counterpart
of the DPR/legislative/parliament in the law-making process. They have to approve together (both
DPR and President) regarding law [ganti veto power in US. So joint-approval process is like the
veto power]. If we strictly refer to the Constitution, we can’t find that President has veto power.
The draft of the law has to be jointly approved and jointly discussed by DPR and President. The
process is complicated.
Why the parliament is so attached to the legislative? One of the functions of the parliament is
legislative function (law-making) that is why parliament is called as the legislative. Is the
legislative a representative body? The ones in the legislative institution (parliament) are the
representative body.

Who is the parliament? In Indonesia, our parliament: DPD, DPR, MPR? Parliament in Indonesia
are those sitting in MPR (people assembly)—forum yang merepresentasikan rakyat. MPR: DPR
and DPD. That’s our state parliament. What kind of model is our representative body in Indonesia?
Unicameral, bicameral, tricameral? We in Indonesia is bicameral (Parliament: MPR—DPR and
DPD. MPR consists of DPR and DPD, MPR is not different from DPR and DPD).

In theory: strong bicameral and soft bicameral. Strong bicameral: clear two institutions of
parliament and have equal power (e.g., in the U.S. Congress: House of Representatives and Senate.
Both chambers have equal power; significant contribution for the state). Referring from the 1945
Constitution, DPR seems to be stronger than DPD. There is, however, a development on DPD
power. DPD used to only have power to propose law that is significant for their local territorial.
The constitution of Indonesia seems to be having soft bicameralism (DPD power is weaker than
DPR power). Our model of representative body: state level (DPR) and territorial level (DPD—
local territorial; province). In U.S., Senate is territorial level and HoR is state level.

Art.1(2) of Constitution: sovereignty of the people. Study about DPR, DPD and sovereignty of the
people.

Indonesia ever experienced unicameral system (5 different chambers; special chambers). Is

unicameral or bicameral better for Indonesia? In Bu Rosa’s pragmatical perspective, what we have
now is already set up. In the future, we depend on many interests (ex: DPD trying to be
strengthened). In the future, Indonesia will most probably have strong bicameral system. Which
one is better? It depends on the era and what is currently going on. Looking back to the drafter of
the Constitution amendments, the model we use should be what they want, which is soft
bicameralism. In reality, the court made informal amendment (made a Court decision) and DPD
can propose any kind of bill (to make it equal with DPR). After the Court’s decision, in practice,
it is not yet applied.

Adds:
DPRD (has no relevance with the DPR, no hierarchy relation). Pemerintah daerah in 1945
Constitution: Gubernur and DPRD. Don’t confuse DPRD and call it local parliament. Negara
kesatuan: one parliament representing the unity. No layering of representative body in unitary
state. We have only one parliament: MPR. MPR: DPD and DPR. The parliament in daerah has
nothing to do with the pusat (DPRD bukan bawahan DPR, kecuali kalau partainya sama)

Follow the newspaper or info about DPD. Struggle to strengthen DPD power for strong
bicameralism in Indonesia.

Kisi-Kisi di module HTN for midterms

QUESTIONS
• Analyze the effectiveness of the different term of office for different countries!
• Is Indonesia good governance?
Constitution is directed to the tatanan pemerintahan yang baik with the strong
constitutionalism value and supporting the rule of law.
• INDICATE CONSTITUTIONAL RIGHTS (UTS)!
§ Explain the scope and example
§ Must give constitutional basis