Sunday, July 29, 2007

Constitutional Democracy

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: Indonesian Constitutional Law 2007.

DEMOCRACY has become a very exalted terms in the history of human thinking about the socio-political order of the ideal [1]. In this modern era, almost all the countries claiming to be adherents understand democracy. as is known from studies of Amos J. Peaslee in 1950, from 83 the Constitution states - diperbandingkannya countries, 74 countries have officially adopted its constitution the principle of popular sovereignty (90%) [2]. Democracy (UK: Democracy) in the language comes from the Greek, namely Demokratia.

Demos means the people (people) and cratos means government or authority (rule). Democracy means implies a political system where the people hold the supreme power, not power by the king or the nobility. The concept of democracy has long been debated. In ancient Greece, democracy as an idea and the political order has become the attention of state thinkers. There are pros and some cons. Plato (429-437 BC) [3] and Aristotle (384-322 BC) [4] do not believe in democracy and democracy as a form of putting a bad government. This famous Filusuf more faith in the monarchy, the rulers wise and attention to the fate of his people. Plato can accept democracy, if a country does not have the Constitution, while Aristotle in the format Politea country, namely democracy with the Constitution or the nature of modern democracy. [5]

In the 16th century, the rationale kings rule the absolute shift in the nature of worldly Illahiah be returned. This was preceded by the resistance of the monarchomacha against the king and the church in the medieval period. Their thinking is based on doubts about the assumption that the kings and the church can not be done arbitrary. In the year 1579 published a book entitled Contra Vindiciae Tyrannos, which then considered the first major book of the Monarchomacha. This book is the principle of popular sovereignty and stated that although the king chosen by God, but he was appointed by consent of the governed. No one is born a king, could not have someone to be king without a people. The emergence of this idea because of the arbitrariness that is happening at that time.

With this in mind, religious concepts that had been used as a basis, is now shifted to worldly concepts. As a result of the defenders of state authority must use the principles of worldly well to deny the thoughts expressed by the monarchomacha, among them was Hugo Grotius (1583-1645M) and Thomas Hobbes (1588-1679M). They no longer use religion as a justification for greater state power, although they say that if the big powers not given to the state, the community will be chaotic. They acknowledged that the state's power comes from the people, but power is given precisely for the interests of the people themselves.

This opinion was later challenged by John Locke (1632-1704 AD) [6], which also departed from the primitive society arguments before the state. But for Locke is not so chaotic society, even that's an ideal society, because the basic rights of human beings are not dilangggar. Thinking Locke was recognized as the most influential thinking on the idea of popular sovereignty. Locke's book titled Two Treaties of Government states that all legitimate government rests on the "consent of the governed". With his statement about the law of nature, Locke argued that government recognition, which in their time under the authority of the church, is an aspect of Divine series. Natural law is identical with God's law and guarantee the basic rights of all people. To secure these rights, people in civil society have a "social contract" with the government. [7]

Thinking Locke was later developed by Charles Louis de Secondat Baron de la Brede et de la Montesquieu (1689-1755M), in his work the spirit of the law / L'Espirit des Lois (Soul of Law), book XI, chapter 6 of of the Constitution of England (British constitution) states in Every government there are three sort of power; the legislature; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law [ 8]. (In every government there are three power, legislative power, executive power than matters relating to the law among nations, and judicial powers relating to legal matters for citizens). The concept of division of powers into three centers of power by Immanuel Kant (1724-1804M) and then given the name Trias Politica (Tri = three; As = axis (center); Politika = power) [9]. With this separation of powers, would be guaranteed freedom of legislation by the parliament, the implementation of laws by the judiciary, and the implementation of the state work day-to-day by the government.

Etymologically, democracy (democratic) is a form of government or the supreme power of the state, where the source of supreme power is the power (to) people (an) which accumulated through the assembly called the People's Assembly Pemusyawaratan (die gesamte staatsgewalt liegt allein bei der assembly). [ 10] The Sri Soemantri Indonesia defines democracy in terms of formal (indirect democracy) as a democracy in which the implementation of popular sovereignty was not carried out by the people directly but through representative institutions like Parliament and the people's Assembly; and democracy in the sense view of life according to Sri Soemantri is democracy as a philosophy of life (democracy in philosophy). [11]

Democracy has a sense of ambiguity and not single. [12] Each country can claim as a democratic state. Countries like the United States, referred to as a democratic state, including former communist countries like the Soviet Union and Eastern European countries. Even the notion of democracy is often manipulated for the sake of ruling elites. With a reason to protect most people, the authorities often oppressive and (or) reduce the rights of the people, to maintain the status quo. This menunjuikkan that has become the choice, of course the best choice among the worst choices available. Each country has different characteristics in applying the ideal of democracy. There are embracing liberal democracy, constitutional monarchy, democracy and social Pancasila democracy. [13]

A state by Amien Rais, called a democratic state if it meets certain criteria, namely: (1) participation in decision making, (2) equality before the law, (3) fair distribution of opinions, (4) the same educational opportunities, ( 5) four kinds of freedom, namely freedom of speech, freedom of newspapers, freedom of assembly and freedom of religion, (6) the availability and transparency of information, (7) fatsoen heed or political etiquette, (8) freedom of individuals, (9) spirit of cooperation and (10) the right to protest. [14] Thus it can be said that democratization means against the monopoly of politicians, officials and technocrats to determine just what is good for society [15].

Robert A. Dahl proposed five criteria for an ideal democracy, namely: (1) equal rights to vote in determining the binding collective decisions, (2) effective participation, ie equal opportunities for all citizens in the process of collective decision making, (3) disclosure truth, namely the existence of equal opportunity for everyone to give an assessment of the political processes and governance logically, (4) final control of the agenda, namely the exclusive power for the people to decide what to do and not have to be decided through a process of governance, including delegate that power to others or the institution representing the communities, and (5) coverage, which included public terliputnya all adults in relation to the law. [16]

Dahl also filed seven indicators for democracy empirically, namely [17]:
1. Control over govermental decitions about policy is constitutionally vested in elected officials;
2. Elected officials are chosen and peacefully removed in Relatively frequent, fair and free election in which coercion is quite limited;
3. Pratically all adults have the right to vote in these elections;
4. Most adults have the right to run for public offices for which candidates run these elections;
5. Citizens have an efectively enforced right to freedom of expression, the conduct of Government, the prevailing political, economy, and social system, and the dominant ideology;
6. They also have acces to alternative sources of information that are not monopolized by the government or any other single group;
7. Finally they have and effectively enforced right to form and join autonomous associations, including political associations, such as political parties and interest groups, that attempt to influence the Government by competing in elections and by other peaceful means. [18]

As a comparison of the indicators proposed by Dahl at the top, the Indonesian political science, [19] after observing democracy in various countries to formulate democracy by using five specific indicators. First; Accountability. In a democracy, every holder of office elected by the people must be accountable for its policies and has been taken to. Not only that, he also must be mempertangungjawabkan words or the words. And last but not least is the behavior in life ever, was, even going to run. Accountability is not only about himself, but also about his family in a broad sense. Child's behavior is his wife, also his relatives, especially those associated with his position. In this context, the incumbent must be willing to face what is called "Public Scrutiny", especially those conducted by the mass media that already exist.

Second; Rotation Powers. In a democracy, an opportunity will occur there must be a rotation of power, and carried out regularly and peacefully. So, not only one person who is always in office, while others closed chance at all. Normally, political parties that won at an election would be given a chance to form a government that controls the executive until the next election. In a country whose democracy is still low, the rotation of power is usually if nothing else, it will only be done in a limited environment in the political elite alone. Third, an open political recruitment. To allow for rotation of power, required a system of open political recruitment. This means that each person is eligible to fill a political office elected by the people have the same chance of doing a competition to fill the position. In countries without democratic, political recruitment is usually done in private. That is, the opportunity to fill a political office held by only a few people.

Fourth general election. In a democratic country, elections held regularly. Every citizen of full age have the right to vote and to be elected and free to use these rights in accordance with the will of conscience. He is free to determine which party or candidate to be supported, there tanp fear or coercion from others. Voters are also free to follow any kind of election activity, including campaign activities and watch the counting of votes. Fifth enjoy basic rights. In a democratic country, every citizen can enjoy the basic rights they freely, including the right to express opinions (freedom of expression), the right to assembly and association (freedom of assembly), and the right to express opinions and used to determine the political prefensi, about an issue, particularly those involving himself and the surrounding community. The right to assembly and freedom of association marked to determine the institution, or any organization that wants him or her select the form.

Alfian defines democracy as a political system [20] who maintain a balance between conflict and consensus. [21] According to the Alfian, democracy provides the tolerance of differences of opinion or conflicts of opinion. Differences or disputes that could be interpreted as a conflict. The conflict here does not lead to confusion of democracy.

One axiom in the political system of democracy is that democracy can not be achieved without the rule of law. Why? The answer of course is not difficult. Democracy which implies the existence of the implementation of basic rights such as rights of expression both oral and written, assembly and association, of course, requires the existence of clear rules and adhered together. Without the existence of a such rules, then the process of implementation of these rights will have many obstacles, because of differences in terms of access, capacity, status, gender, and social class and so on. By using rules that are not biased against individuals or particular groups, they will be able to achieve such a state of equality, namely equality in public, so that each party can participate fully, openly and fairly. To ensure the achievement of such participation, must be poured in a fundamental legal provisions (read; constitution).

Several studies ever conducted by Mahfud MD [22] produces the conclusion that throughout the history of Indonesia has occurred attraction between democratic politics and authoritarian politics. Political democracy and authoritarian always appeared alternately through the political struggle that is sometimes hard. Mahfud explained that in all the authentic text of the constitution that had or were applicable in Indonesia set democracy as a fundamental state principle, but not all of government and political system was born in Indonesia is a democracy, in fact there is a tendency that the style democracy occurs only at the beginning of attendance a regime. Which seems to determine the implementation of democratic principles in a state of life is how democracy is not only mentioned as a principle in the constitution but are strictly elaborated in the constitution itself.
The main purpose of the constitution is to limit the effective implementation of government power so that power is not done arbitrarily. Important goal of the constitution is to protect the basic rights of citizens from abuse of authority by the organizer of power. Both these objectives can be achieved only if the organization of state power does not accumulate in one body or one person. Power must be distributed. With the distribution of power to a few people or institutions, preventing abuse of power. Thus the term constitutionalism appears to indicate a system of basic principles that define and limit the powers and rights of the ruling (in power) and for the ruled.

The discussion is closely related to the constitutional democratic system adopted by a country. Most modern nations now including countries that had achieved independence after World War II has ended since all embracing system of constitutional democracy. Which is characteristic of a constitutional democracy is a government whose power is limited and not dipekenankan arbitrary act against the people. Restrictions are listed in the constitution. In the system of constitutional democracy, state power in the hands of the people. Holders of limited powers authority by the constitution so as not to violate the rights of the people. And executive powers between the branches of other powers are checks and balances. Control of legislative bodies of executive power that is not out of the rails of the constitution.

By the International Commission of Jurist in the conference in Bangkok in 1965, the countries that embrace democratic principles, also called representative government. As for who is the representative government by the International Commission of Jurist is Representative government is a government deriving its power and authority form the people, which the people and authority are Exercised through freely chosen representative and responsible to them. [23]

Then the organization of international legal scholars on the set all the terms of representative government or the principles of democracy in a country, namely [24]:

1. The existence of constitutional protection;
2. The existence of judicial power is independent and impartial tribunal;
3. The existence of free elections;
4. The existence of freedom of expression and association;
5. The existence of opposition tasks and,
6. The existence of civils education. [25]

[1] Hendra Nurtjahjo, Philosophy of Democracy, PSHTN FH UI, Jakarta, 2005. hlm.1.
[2] Amos J. Peaslee, Constitutions of the Nation, Vol. I, Concord, The Rumford Press, New Haven, 1950. pp. 8, terpetik in Jimly Asshiddiqie, the Constitution and constitutionalism Indonesia, Constitutional Press, Jakarta, 2005. hlm.140.
[3] Plato (429-347 BC) was a pupil of Socrates (469-3999 BC), he was born on 29 May 429 BC in Athens. Many produce works of Plato in philosophy, politics and law. Among the famous works are Poletea (of State), Politicos (about Expert State) and Nomoi (the Act), in terpetik JJ. Von Schid, experts Think Big About the State and Law, PT. Development, Jakarta, 1988, pp. 10.
[4] Aristotle (384-322 BC) comes from Stageria. He was a pupil of Plato (429-347 s.M). Many produce works of Aristotle in Philosophy, Logic, Politics, and Law. His work is famous in the Philosophy of Law is bidanhg Ethica and Politica. Terpetik in Budiono Kusumohamidjojo, Philosophy of Law; Problematika Order Fair, Grasindo, Jakarta, 2004, pp. 38.
[5] Haedar Nasir, Ideas and the New Wave of Democracy, in Mahfud MD, et.all, Political Discourse and Democracy Indonesia, Pustaka Pelajar, 1999.
[6] John Locke (1632-1704) was an English filusuf who was born in Wrington on August 29, 1632, and died on October 28, 1704. more information about Autobiography of Locke can be seen in his book Two Treatises of Civil Government, JM Dent and Sons Ltd., London, 1960., P. v-viii.
[7] Miriam Budiardjo, Op-cit, pp. 56.
[8] Montesquieu, The Spirit of the Law, Hafner Press, New York, 1949, pp. 151.
[9] Moh. Mahfud M D, Loc.cit, pp. 74.
[10] Yan Pranadya Puspa, Law Dictionary, Aneka Ilmu, Semarang. First printing 1977. pp. 295.
[11] Sri Soemantri, Comparative Constitutional Law Inter, Alumni Bandung, 1971. pp. 26.
[12] and Fachruddin Saifullah Yusuf Salim, Indonesia's Struggle Developing Democracy, publisher of PP Ansor Youth Movement, first printing, 2000
[13] Indonesia, including countries that have a unique experience in democracy. Starting from liberal democracy, guided democracy, and democracy, the New Order Pancasila democracy until after the New Order. Each have advantages and disadvantages of the more valuable the experience set the foundation in terms of democratic life that can be accepted by all people.
[14] See Amien Rais, Democracy and the Political Process, in Democracy and Political Processes, Series Prisma Jakarta, diterbikan LP3ES, 1986
[15] Frans Magnis Suseno, Power and Moral, Gramedia Pustaka Utama, Jakarta, 2001, pp. 47.
[16] Robert A. Dahl, Pluralist Democracy Dilemma; Between Autonomy and Control, translation by Sahat Simamora, publisher Rajawali Press, Jakarta, 1985
[17] See Afan Gaffar, Political Transition Towards Democracy Indonesia, Pustaka Pelajar Jakarta, 1996. pp. 6-7.
[18] The proposed indicators Dahl, according to Afan Gaffar, can dlihat number pesyaratan whether a political order is a democratic system or not, namely accountability, rotation of power, political recruitment that is open, elections, and to enjoy basic rights . (Afan Gaffar, Ibid, pp. 8)
[19] See Affan Gaffar 1998; Melian 2000; Soemantri 1971; Budiardjo 1996
[20] According to Gabriele A. Almond, as quoted in his book Rusandi Sumintapura Political System in Indonesia, (New Sinar, 1988: 8), the political system is "... the political system is that the system of interaction of several found in all independent societies, which performs the function of intergration and adaptattion (both internally and vis a vis other societies) by means of employment or threat of employment, of more or less legitimate physical compulsion "
[21] Alfian, Thought and Political Change Indonesia, Gramedia Jakarta, 1986, pp.
[22] Mahfud MD, Politics of Law in Indonesia, LP3ES, Jakarta, 1998
[23] Sri Soemantri, and Implementation of Pancasila Democracy According to the Constitution of 1945, the publisher Alumni Bandung, 1969. Hal.14
[24] Sri Soemantri, Op-cit, pp. 157
[25] as a comparison, characteristics and requirements of a modern constitutional state (welfare state) are: (1) constitutional protections, (2) The independent judicial body (independent and inpertial Tribunals), (3) a free election, (4) Freedom to express opinions, (5) Freedom of association / organization and opposition, (6) citizenship education.

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