INTRODUCTION: BLAZING A TRAIL FOR CONSTITUTION OVER POLITICAL POWER

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PETITA, Vol.5, No.1, 2020 http://petita.ar-raniry.ac.id/index.php/petita DOI: https://doi.org/10.22373/petita.v5i1.127 P-ISSN: 2502-8006 E-ISSN: 2549-8274

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INTRODUCTION: BLAZING A TRAIL FOR CONSTITUTION OVER POLITICAL POWER

Muhammad Siddiq Armia & Muhammad Syauqi Bin Armia Universitas Islam Negeri Ar-Raniry, Banda Aceh, Indonesia

Political power embraces most of the case in constitutions making. Such power able to provide the massive access to shift the country’s direction into totalitarian, dictatorial leadership or tyranny. These type of power binds population with a long-lasting government and a simple doctrine: regional stability. As a result, a government that enjoy such stability leads to the uncontrolled prejudice constitution making. Just as importantly, misappropriation of political power exercise will be equating the legitimacy of such government into constitution interventions according to their own preferences. It may perhaps transcend the favour of free societies and human rights of the people. The political power should not preclude the population interest as well as values of democracy, justice, freedom and individual rights.

The discussion of constitutions emphasises on sovereignty of the individuals within the nation. The nation’s values that embedded the constitutions somehow merely influence by political power. Totalitarian derived from ultimate principles of which exceed individual preferences and free from interferences. This concept differs from authoritarianism which classified as severe degree of totalitarian. Southeast Asian for example, the region that consist ten countries experienced numerous systems of totalitarian and dictatorship many years ago. The countries like Cambodia and Vietnam determined the hegemony authoritarianism, while Malaysia and Singapore exhibited long term competitive authoritarianism. Yet, the individual rights remain protected, however the four countries unfulfilled the political rights and alter the level of playing for the particular group of politicians. Also, this region has the country that closed to authoritarian but still fulfilled the basic rights, such as Brunei Darussalam.

Indonesian democracy experienced the various degree of escalation. Although the election had been there, however the political human rights practice still not properly practiced previously. The regime tends to exercise the hybrid democracy, where the authoritarian government still hold the power until 32 years. As a result, the liberal democracy that consist the civil liberties and political rights were unachievable.

The government interference the law maker and created the mechanism from the nation’s constitution with argument of national interest and stability. Eventually, the Indonesian people had succeeded to undertake comprehensive transformation by a national protester to manage the transitional democracy in 1998. Unfortunately, this transition came with casualties. The protester started to loot the goods from particular persons that came from minority ethnics. Or as simply as they don’t want to look at such minority.

From such cases, the lesson learned is about the government accountability and upholding human rights. Whereas the government in some case did not accept responsibility to be inline with human rights standards. The constitution’s effectiveness embraced state understanding about his obligation to preserve and protect constitutions and human rights. The law-making process should be interference-free and develop the constitutions based on public interest. By employing explanatory type of model, we able to see wider picture of constitutions debate.

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The Indonesian Regional Representative Council (hereinafter DPD) was part of the 1998 transitional democracy which leads to its establishment. The 1945 constitution after the last amendment authorised the DPD to be part of the law-making process. However, mostly they were precluding from the constitutions making and quiet often their justification not being considered. The law-making process being made by the President and the house of representative council (hereinafter DPR) only. Fahrul Reza in his part “The Authorities of Regional Representative Council After Constitutional Court Decision: Is It Strong Enough?” suggested that DPD must be the balancer through their presence at the discussion level.

Another significant aspect of constitution debates is the discussion about implementation of Islamic Sharia law within the regional regulations. At least, two major obstacles faced by sharia law to be implemented: political and ideological struggle. Exceptionally, the flourishing of the regional law embraced sharia value does not ascertain the smooth implementation. This due the plurality and various ideologies within Islam. Musahadi in his part “The Struggle Between Political and Ideological Over the Implementation Sharia-Nuanced Regional Regulation” described such obstacle that struggling Sharia regional regulation.

In addition, in the discussion of constitutions implementation, it is important to ask whether the individual rights had been exercised objectively or it just as hard as implement the regional Sharia law? Ozy Diva Ersya in her article “Batam Free Trade Zone and Free Port: A Juridical Review from The Aspect of The Movement of Imported Goods” highlight the juridical aspect on the custom and tax policies on Batam Free Trade Zone. The authority needs to give more concerns about the prominent views that have been developed as free zone: extraterritorial zone or the validity of exemption of the imported goods. She suggested that the legal norms should be discussion priority and the establishment of such custom law to supervise the movement of goods.

As previously stated, an ideal form of constitution that able to serves the individual rights, also able to solve the disputes among such individuals. The disputes settlement seems that the mechanism where the country with liberal democracy should have. For instance, the special region of Yogyakarta had faced severe polemic on how the successorship of the governor, where it must come from direct previous governor as part of the royal family where have no boy in his heirs, must be a man. Iwan Satriawan and Faishal Aji Prakosa explained in their article on how such dispute could be settled by the presence of constitutional court. From this explanation, it pictured that the constitution played his role effectively. Although it was a cul-de-sac case, the author clearly suggested the formation of institution that facilitates the dispute settlement.

Previously stated that the authoritarian could lead to misappropriation of political exercise. Afghanistan for instance, the country that used to be authoritarian.

This is an objective part of views that Afghanistan is a failed country. As a result, the refugees from Afghanistan flew to their neighbor, Pakistan. Faiz Bakhsh and Muhammad Asif Safdar in their part “The Role of the UNHCR in the Repatriation of Afghan Refugees from Pakistan.” The Afghan refugee still struggling to repatriate even being helped by Pakistan government. This part discussed about the repatriation of the Afghan refugees from Pakistan, engineered by the UNHCR and Pakistan, under the legal framework applicable for safe and voluntary return of refugees.

As was mentioned before, to fulfil the individual rights is to let the truth and human rights being preserved. As was part of the region was suffering a severe conflict, Aceh is the most western Indonesian province who gets the privilege to implement the Truth and Reconciliation Commission and Human Right courts. These are part of the

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Memorandum of Understanding in Helsinki where the central government agree to restore the Acehnese’s rights. This was clearly explained in their part by Herlambang P.

Wiratraman, Sri Lestari Wahyuningroem, Manunggal K. Wardaya and Dian P.

Simatupang. Through their concept of Human rights constitutionalism, where constitutional rights become a policy foundation, in order to fulfil basic rights and protect the victims. They indicate several problems such as: limitations of Constitutional Court’s solution, financing scheme, governance and institutional recognition have been obstacle to implement such idea.

Indonesian constitutions based on communities’ values that shape the society.

Such values are derived to serve the great benefit for the society. One of the values formed a constitutionalism concept, where the core value is to limit the executive periods to prevent the abuse of power. Ahmad Hariri in his part “The Politics of Law Concerning the Tenure of Village Head Reviewed from The Constitutionalism Perspective” found the gap in the case of village leader regulation. The period of occupation for such leader is much longer than the superior executive position in the government. The period is six years long and can be re-elected for three periods. Ahmad strongly indicates that this long period of power is vulnerable as a gap to do a corruption and power abuse. This due to the tenure of village head is unconstitutional.

Thus far, the introduction has argued that the constitution and its implementation should become the objective of the government. It should be a tool to ascertain the individual rights and justice to the nation. The voice to keep the constitution stay on its trail is need to be blazed all the time. This to keep government stay on justice and preserve the people’s interest.

On behalf editorial board, we strongly believe that the human rights and political power should be as objective as it can. All articles published in this volume have been thoroughly selected and appraised by the reviewer and experts.

Banda Aceh, 1 April 2020

Muhammad Siddiq Armia & Muhammad Syauqi Bin-Armia