Thursday, July 5, 2007

The Fifth Amendment of the 1945 Constitution

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.
Published by: Forum Magazine No. 35 Issue 8-15 January 2007.

The development of ideas and the idea of an amendment to the Constitution back in 1945, again sticking out among the public. Although the idea and this idea, is something that is impossible to be implemented and realized in the near future. However, it should be a continuous response, in order to develop and further diapresiasikan in order to find and organize the state administration system in Indonesia.

In addition, for the present situation and the discourse about the discourse of the amendment back to the 1945 Constitution is not something that can be considered taboo and forbidden. The very thing that can be considered taboo and is forbidden now glorifying the 1945 back as it had been done by the regime's new order of government (Order) under the leadership of former President Suharto with political jargon of the most famous of "implementing the 1945 Constitution in a strict and consistent without any intention to change ".

As we know, the amendments that have been made against the 1945 Constitution, is as much as 4 (four) times (years 1998 to 2002). And the results of the 1945 amendments have brought the implications of significant changes to the Indonesian state administration system. However, when we contemplate and to comprehensively evaluate the results of the 1945 amendments made by the People's Consultative Assembly (MPR), can not fully be said to be problem solving for resolving administrative problems suffered by the Indonesian people for a little over six decades under the 1945 Constitution before the amendment . In addition, the results of the 1945 amendment is still very far from the spirit of reform of May 1998, the spirit of the constitution towards a democratic life and spirit to set up the institutional relations between state and state institutions in accordance with the principle of mutual and balanced control (checks and balances). If studied in depth, there are three factors that caused the bad results of amendment 1945 (1998-2002) First, the Assembly as the only state institution that received a mandate from the people and have the authority to amademen 1945 Constitution in accordance with Article 37 of the Constitution 1945, at the time of the 1945 amendments did not have the clarity and the changing paradigm framework (framework), which led to the 1945 amendment to the partial, piecemeal and patchy. Second, the strong attraction of political interests (political interest) and political bargaining (bargaining politics) political elites in the formulation of rules that will be poured into the articles changing the 1945 Constitution. Third, the lack of popular participation (public participation) in the 1945 amendment process. This is evident from the performance of the Assembly who was not optimal and truly in giving opportunity to the people to participate in the amendment process. If anything, the process of socialization and crawl / absorption aspirations of the people, all merely a formality to satisfy the mechanisms and procedures only. In fact, this has become the most important part in a 1945 amendment process, especially in building the sense of belonging and confidence of the people to the basic law.

Now, four years after the 1945 amendment and since the implementation of the 1945 amendments in the administration of government, the various administrative problems appeared one by one to the surface, coloring the life of the state administration in Indonesia. Various administrative problems such as, first, the dominance of power the House of Representatives (DPR) in the administration of government, which led to the superiority of the House of Representatives of the institutions of other countries (DPR heavy). Second, discrepancies between the status and authority of the House of Representatives and Regional Representative Council (DPD), especially in terms of implementation of the Law-making functions (legislation). As a representative institution regional interests, the DPD have the right legislation is only a very limited ie only in matters related to regional autonomy, central and local government relations, establishment, expansion and merger of regions, management of natural resources and other economic resources and related with the balance of central and local finances. Third, the conflict of authority between the Supreme Court (MA) and the Judicial Commission (KY), especially in terms of supervision over judges issue that occurred some time ago. Fourth, the conflict of authority between the president and vice president. Actual example is the problem of the formation of Work Unit President for Management Reform Program (UKP3R) through Presidential Decree No. 17 of 2006 by President Yudhoyono, who invited a negative response from Vice President Jusuf Kalla because they feel excluded from the process of establishing the work unit by President Yudhoyono.

The main factor which no other cause comes from the 1945 Constitution itself. Although the amendment was carried out four times against the 1945 Constitution in order to cover the various gaps and weaknesses they have in the past, not that of the 1945 Constitution after the amendment has guaranteed free and sterile from various weaknesses and shortcomings. In fact it can be said of the 1945 amendments, save a number of "time bomb" and the pitfalls that could lead to new problems in the state administration in Indonesia in the future.

When examined at least three weaknesses are owned by the Constitution of 1945 after amendment, first, the 1945 amendment hasila have certain weaknesses in terms of technical grammar (grammatical) and compilation techniques Act (legislative drafting). In terms of grammatical, the results of the 1945 amendment has a number of weaknesses that can lead to multiple interpretations of interpretation (multi-interpretation). Meanwhile, in terms of legislative drafting techniques, placement and the addition of several articles in the 1945 amendment results difficult to understand and be understood by all levels of society. This is reflected in a number of articles that appeared unusual. For example, to Article 22 there is Article 22, Article 22A and Article 22B. Examples of these articles can only be understood and understood by the limited, especially by the legislature and a small group of people who have knowledge of legislative drafting. Second, the vagueness of the concept of representative institutions adopted by the 1945 amendment results. Please note, until now still occur disagreement among constitutional law experts about the concept of representative institutions adopted by the 1945 amendment results. Some say the system for a room (unicameral system), system of two chambers (bicameral system), even some that declared the system a three-room (three-cameral system). That addition, bicameral parliamentary system outlined in the third amendment of the 1945 Constitution is still not pure bikameralisme ensuring a balance or checks and balances between the two rooms in the parliament. Third, the concept of power distribution (distribution of power) state agencies adopted by the 1945 amendment results are not proportional, this is reflected in the dominant role of the Parliament of power compared to the power possessed other state institutions. Rests on the weakness of the above, there is no other alternative, which should be a way out this time was chosen to reform and improve the results of the 1945 amendment. If we listened to back, actually attempt to refine the results of the 1945 amendment work of this Assembly, had done in 2002 and, through the establishment of the Constitutional Commission established by the Assembly, which is poured into the MPR Decree No. I/MPR/2002 on the Formation Commission Constitution.

However, the development of the Constitutional Commission's work during the seven months of the draft text of the Comprehensive Academic Study of the 1945 Constitution Amendment, it is only accepted by the Assembly without a clear follow-up on the results of these studies. Currently, post the results of the study kandasnya draft Constitutional Commission, to resolve these problems, steps that can be done is to make the fifth amendment to the 1945 Constitution. This step is a step most appropriate and constitutional to choose from today. Despite these steps, is something very difficult to be realized, because of the conditions and the political situation and the political will and political action of the Assembly can be really, really determines whether or not the realization of the idea of the fifth amendment to the 1945 Constitution. We hope that awareness for all parties and all elements of the Indonesian people, especially the political elite in Senayan which is currently holding and controlling state power, to be able to immediately respond and realize this idea. Because if not, the Indonesian people would never have finished setting the political subdivision system. Let us wait.

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