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Introduction to the Constitutional Law of The Republic of Indonesia

Introduction to the Constitutional Law of The Republic of Indonesia. Mailinda Eka Yuniza Faculty of Law CDU - U GM. Outline of Presentation. Terms and Definition History of Indonesia’s Constitution State Organs Relationship between the Central and Regional Government as a Unitary State

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Introduction to the Constitutional Law of The Republic of Indonesia

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  1. Introduction to the Constitutional Law of The Republic of Indonesia Mailinda Eka Yuniza Faculty of Law CDU - UGM

  2. Outline of Presentation • Terms and Definition • History of Indonesia’s Constitution • State Organs • Relationship between the Central and Regional Government as a Unitary State • Hierarchy of Laws in Indonesia

  3. Terms and Definition • Hukum Tata Negara or Hukum Konstitusi • Definition: A branch of legal science which spesifically studies law related isuues in the context of statehood

  4. History of Indonesia's Constitution • The 1945 Constitution • The Federal Constitution • The Temporary Constitution • The Return to Indonesia’s 1945 Constitution with its Amendments • 1st Amendment • 2nd Amendment • 3rd Amendment • 4th Amendment

  5. A. The 1945 Constitution • The 1945 Constitution was enacted on 18 August 1945 by the Preparatory Committee for Indonesia’s Independence (PPKI). This was done one day after the proclamation of Indonesia’s independence by President Soekarno, Indonesia’s Proclamator and First President. • The 1945 Constitution constitutes of 37 simple articles. The reason for this is because of the limited time and pressure for Indonesia’s Independence. Although simple it sets as the basic foundation of Indonesia’s current state. • The most important part of this first constitution is its preamble. This sets as the permanent body of the text in the future, that cannot be changed or removed. The Preamble represents the spirit and basic foundation of Indonesia. Changing or removing the preamble would be the same as to changing Indonesia.

  6. B. The Federal Constitution • The 1945 Constitution was replaced temporarily after the Round Table Conference in 2 November 1949 between the representative of the Netherlands, Republic of Indonesia, and the Federal Consultative Assembly (BFO). • Although Indonesia has proclaimed its independence, the Netherlands still believed that the Indonesian territory at that time still belongs to the Netherlands. This resulted to a clash between the Netherlands and Indonesia in the early 1949.

  7. Federal Constitution • The action made by the Netherlands was condemned by the United Nations Security Council, and this led to the Round Table Conference which made the Netherlands to recognize Indonesia as an independent state. However, this led to the Netherlands intervention of Indonesia’s Constitution and resulted to the change of government from a Unitary Republic of Indonesia into the United States of Indonesia with the new Federal Constitution, which was enacted in 27 December 1949.

  8. B. The Federal Constitution • Due to the wide spread rejection of the Indonesian People towards the Federal Constitution, the 13 States of the 16 States which constitutes the United States of Indonesia at that time decided to return to the Republic of Indonesia. This was in accordance with article 43 of the Federal Constitution, which gave the freedom to States to choose for themselves. • After the acceptance of the other three States, President Soekarno in front of the Senate and the House of Representative proclaimed the establishment of the Republic of Indonesia in 15 August.

  9. The Temporary Constitution • The Temporary Constitution was then promulgated in 17 August 1950, with the enactment of Law No. 7 Year 1950. This lead to the return to the Republic of Indonesia. • This constitution was a temporary constitution pending the appointment of a constitutional assembly and the preparation of a permanent charter. • Although there was the first election in 1955 to form the constituents for the formulation of the new constitution, this effort was not succesfull. • President Soekarno then has made a decree to return the State in to the original 1945 Constitution in 5 July 1959, through the Presidential Decree No. 150 Year 1959.

  10. D. The Return to Indonesia’s 1945 Constitution with its Amendments • The return to the original 1945 Constitution showed that this was the best constitution that suits for the Indonesian People. • However some scholars believed that the change to 1945 Constitution was for the benefit of the people in power. This can be seen by President Soekarno’s declaration to be the President of Indonesia for life through the People’s Consultative Decision. • After President Soekarno’s fall, President Soeharto has manipulated the constitution as well by prohibiting any amendments towards it. This was clearly a problem since there was no period of limitation for the term of Presidency and that the determination of the President is through an agreement with only one candidate.

  11. During President Soeharto’s regime, it was prohibited to amend the constitution. It was considered as the destruction of Indonesia if anyone was to amend the Constitution, which was still very simple due to the limited time of formulation after the Independence. • Therefore after the downfall of President Soeharto, the 1945 Constitution started to be amended by the People’s Consultative Assembly.

  12. The Return to Indonesia’s 1945 Constitution with its Amendments • The 1st, 2nd, 3rd and 4th amandment covered an extremely extensive and fundamental range of substances. • The original 1945 constitution consist of 71 points formulated in 37 articles. • The amended constitution: only 25 points were not amended, 46 points were amended and added with new provisions totalling 199 of provisions. • The amandment covered more than 300% of the contents of the 1945 constitution

  13. Subtance included in Amandments • The provision on human rights, citizen rights and obligations, as well as the relationship mechanism between citizens and the state and the procedures for defending those rights when impaired • The fundamental principle of democracy and the rule of law, and the mechanism for their realisation and implementation, such as general election, etc • The format of state institution and the relationship between state organs as well as the accountability system of officials.

  14. 1. The 1st Amendment • The First Amendment was determined in the 12th Plenary Session of the People’s Consultative Assembly and enacted on 19 October 1999, amending/adding 9 articles of the Constitution: article 5, 7, 9,13,14,15,17,20, and 21. • The amendment has limited and underlined the authority of the President. It also has re-emphasized the cooperation between State Organs in performing its duties, such as the formulation of bills and the appointment of ambassadors.

  15. Example of Amended Article • Art 7 (old): the president and vice president shall hold an office for a term of five years and shall be eligible for re-election • Art 7 (amended): the president and vice president shall hold an office for a term of five years and may subsequently elected to the same office for one further time only

  16. 2. The 2nd Amendment • The Second Amendment was enacted on 18 August 2000, amending/adding 30 articles of the Constitution. • The amendment has emphasized and explicated the rights and recognition of regional governments. It has also limited the President’s right in legislation process. The provision of Human rights was included as well. There was also explication about the duties of the National Military and the Police. Last but not least it has also explicated underlined and emphasized the identity of Indonesia through Chapter IXA and XV.

  17. 3. The 3rd Amendment • The Third Amendment was determined in the 7th Plenary Session of the People’s Consultative Assembly and enacted on 9 November 2001, amending/adding 27 articles of the Constitution. • The third amendment has regulated of the election and requirements of a Presidential Candidate. It also has limited the President’s as to limiting the President from freezing the House of Representatives and of the possibility to impeach the President by the Legislative Body. This amendment has also established several new State Organs, such as the Regional Representatives Council, Supreme Audit Board, and the Constitutional Court.

  18. 4. The 4th Amendment • The Fourth Amendment was enacted on 10 August 2002, amending/adding 21 articles of the Constitution. • The 4th Amendment has clarified the existence of the new legislative body from the previous amendment that the People’s Consultative Assembly shall consist of the members of the House of Representatives and Regional Representatives Council. This amendment has also regulated and explicated further the economic, education, and social welfare foundation of Indonesia. The process of amending the Constitution has also been amended in this Amendment.

  19. State Organs • People’s Consultative Assembly (MPR) • The House of Representative (DPR) • The Regional Representative Council (DPD) • The President and the Vice President • Supreme Court • Constitutional Court • Supreme Audit Board • Judicial Commission

  20. A. People’s Consultative Assembly (MPR) • The MPR shall consist of the members of the House of Representative and the members of the Regional Representative Council who have been elected through general elections, and shall be regulated further by law. • The MPR has the following duties: • The MPR has the authority to amend and enact the Constitution. • The MPR shall inaugurate the President and/or Vice President. • The MPR may only dismiss the President and/or Vice-President during his/her term of office in accordance with the Constitution.

  21. B. The House of Representative (DPR) • Members of the DPR shall be elected through a general election. • The DPR shall have the following rights and duties: • The DPR shall hold the authority to establish laws. • The DPR shall hold legislative, budgeting and oversight functions. • DPR members shall have the right to propose bills.

  22. C. The Regional Representative Council (DPD) • The members of the DPD shall be elected from every province through a general election. The total number of members of DPD in every province shall be the same, and the total membership of the DPD shall not exceed a third of the total membership of the DPR. • The rights and duties of the DPD are as follows: • The DPD may propose to the DPR Bills related to regional autonomy, the relationship of central and local government, formation, expansion and merger of regions, management of natural resources and other economic resources, and Bills related to the financial balance between the centre and the regions. • The DPD shall provide consideration to the DPR over Bills on the State Budget and on Bills related to taxation, education, or religion. • The DPD may oversee the implementation of laws concerning point 1.

  23. D. The President and the Vice President • The President of the Republic of Indonesia shall hold the power of government in accordance with the Constitution. • In exercising his/her duties, the President shall be assisted by a Vice-President. • The Rights and Duties of the President are as follows: • The President shall be entitled to submit bills to the DPR. • The President may issue Government regulations as required to implement laws. • The President and Vice President shall hold office for a term of five years and may subsequently be re-elected to the same office for one further term only. • The President is the Supreme Commander of the Army, the Navy and the Air Force. • The President with the approval of the DPR may declare war, make peace and conclude treaties with other countries. • The President may declare a state of emergency. • The President may grant clemency and restoration of rights and shall in so doing have regard to the opinion of the Supreme Court and DPR.

  24. E. Supreme Court • The judicial power shall be independent and shall possess the power to organize the judicature in order to enforce law and justice. • The judicial power shall be implemented by a Supreme Court and judicial bodies underneath it in the form of public courts, religious affairs courts, military tribunals, and state administrative courts. • The rights and duties of the Supreme Court are as follows: • The Supreme Court shall have the authority to hear a trial at the highest (cassation) level, to review ordinances and regulations made under any law against such law, and shall possess other authorities as provided by law.

  25. F. Constitutional Court • The judicial power shall be independent and shall possess the power to organize the judicature in order to enforce law and justice. • Other than the Supreme Court, the judicial power shall be implemented by a Constitutional Court. • The Constitutional Court shall possess the authority to try a case at the first and final level and shall have the final power of decision in reviewing laws against the Constitution, determining disputes over the authorities of state institutions whose powers are given by this Constitution, deciding over the dissolution of a political party, and deciding disputes over the results of general elections. • The Constitutional Court shall possess the authority to issue a decision over an opinion of the DPR concerning alleged violations by the President and /or Vice-President of this Constitution.

  26. G. Supreme Audit Board (BPK) • The members of the BPK shall be chosen by the DPR, which shall have regard to any considerations of the DPD, and will be formally appointed by the President. • The rights and duties of the BPK are as follows: • To investigate the management and accountability of state finances, there shall be a single Supreme Audit Board which shall be free and independent. • The result of any investigation of state finances shall be submitted to the DPR, DPD or DPRD in line with their respective authority. • Action following the result of any such investigation will be taken by representative institution and/or bodies according to law.

  27. H. Judicial Commission (KY) • Judicial Commission is Independent. • The Judicial Commission shall possess the authority to propose candidates for appointment as justices of the Supreme Court and shall possess further authority to maintain and ensure the honor, dignity and behavior of judges.

  28. III. Relationship between the Central and Regional Govenrment • The Division of Authority between the Central and the Regional Government (art. 10 (3)) • The right for unification or division of Regions (art. 4 (3)) • Autonomy (art. 21)

  29. A. The Division of Authority between the Central and the Regional Government The Regional government is able to manage their regions as long as they do not trespass the Central Government’s authority as mentioned below on the following subject matters: • Foreign Politics • National Defense • Security • Judicial System • National Monetary and Phiscal • Religion.

  30. B. The right for unification or division of Regions • Law Nr. 32 Year 2004 on Regional Government provides the rights for the regions to unify into one region or to divide themselves into smaller regions. • The prerequisites for this are: • Administrative Prerequisites Approval by the relevant City/Regency DPR and approval by the Regional DPR and Governor • Technical Prerequisites Has the economic capacity, regional potential, social cultural, social political, population, area, defense, security, and other factors that enables the implementation of regional autonomy. • Physical Prerequisites - At least 5 regencies for the establishment of a new Province. - At least 5 sub-districts for the establishment of a new Regency. - At least 4 sub-districts for the establishment of a new city.

  31. C. Autonomy • In implementing their autonomy, Regions have the following rights: • organize and manage their own affairs of his government • selecting regional leaders • manage local officials • managing regional assets • local taxes and levies • obtain the results of natural resource management and other resources in the regions • obtain other sources of legitimate income • have other rights provided for in Rule legislation.

  32. IV. Hierarchy of Laws in Indonesia • The 1945 Constitution of the Republic of Indonesia • Decrees of the People‘s Consultative Assembly • Law / Government Regulation in-lieu-of Law • Government Regulation • Presidential Regulation • Provincial Bylaw • Municipal Bylaw

  33. References • Law Nr. 32 Year 2004 on Regional Government. • Law Nr. 12 Year 2011 on Formulation of Legislation. • Ni’matul Huda, Hukum Tata NegaraIndonesia(Indonesian Constitutional Law), 2007, PT. RajaGrafindo Persada, Jakarta. • The Constitutional Court of the Republic of Indonesia, The 1945 Constitution of the Republic of Indonesia and the Act Number 24 of 2003 on The Constitutional Court of The Republic of Indonesia, 2003, Secretariat General.

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