P-ISSN: 2502-8006 E-ISSN: 2549-8274 DOI: https://doi.org/10.22373/petita.v8i1.128
BUILDING A CONSTITUTIONAL AWARENESS CULTURE TO CREATE A DEMOCRATIC LAW STATE
JIMLY ASSHIDDIQIE
Faculty of Law, University of Indonesia, Jakarta, Indonesia Email: [email protected]
Abstract: This article investigates on how the 1945 Constitution has changed the landscape of Indonesian’s legal system as well as creating democratic law state. In contrast, before the amendment of 1945 Constitution, the state power has centred in the hand of president, including the power of legislative, judicative, and also executive. In this period of time, it is hard to build constitutional awareness as people do not feel a democratic law state, affecting the people have low trust to the government. This condition has asked for amending the constitution and sharing state power instead of centring in one hand with principle of check and balances. This article has used constitutional black-letter law method, focusing on constitution norms in specific articles as main data. The main points can conclude that the 1945 Constitution after amendment has democratically created law state as several foundamental rights of people has been absorbed in the Constitution 1945, including human rights and priciple check and balances.
Keywords: Constitutional Awareness, Democratic Law State, The 1945 Constitution Abstrak: Artikel ini membahas tentang bagaimana Undang-Undang Dasar 1945 telah mengubah wajah sistem hukum Indonesia serta menciptakan negara hukum demokratis Hal ini bertolak belakang sebelum adanya amandemen Undang-Undang Dasar 1945, dimana kekuasaan negara berpusat di tangan presiden, bersamaan dengan kekuasaan legislatif, yudikatif, dan eksekutif. Pada periode tersebut sangat susah membangun kesadaran berkonstitusi karena rakyat tidak merasakan bernegara secara demokratis, yang mengakibatkan rendahnya kepercayaan masyarakat kepada pemerintah. Kondisi seperti ini mengakibatkan tuntutan untuk mengamandemen undang-undang dasar dan membagi kekuasan negara dengan prinsip saling memeriksa dan berimang, bukan mempusatkan pada satu tangan kekuasaan. Artikel ini menggunakan metode constitutional black-letter law denga fokus pada norma konstitusi yang terdapat pada pasal-pasal khusus sebagai data utama. Kesimpulan utama dalam artikel ini adalah Undang-Undang Dasar 1945 setelah diamandemen telah menciptakan negara demokratis. Beberapa hak-hak dasar rakyat telah di serap didalamnya, termasuk hak asasi manusia dan prinsip-prinsip saling periksa dan berimbang.
Kata Kunci: Kesadaran Berkonstitusi, Negara Hukum Demokratis, Undang-Undang Dasar 1945
Introduction
One of the achievements of the Indonesian people during the reformation period was constitutional reform. Constitutional reform is seen as a necessity and an agenda that must be carried out because the 1945 Constitution before the amendment was deemed insufficient to regulate and direct the administration of the state according to the people’s expectations, the formation of good governance, and support the enforcement of democracy and human rights. At the 1999 MPR General Session, all factions in the MPR
made an agreement on the direction of amendments to the 1945 Constitution as follows:1 1. agreed not to change the Preamble of the 1945 Constitution;
2. agreed to maintain the form of the Unitary State of the Republic of Indonesia;
3. agreed to maintain the presidential system (in the sense of at the same time perfecting it so that it truly fulfills the general characteristics of the presidential system);
4. agreed to transfer the normative matters contained in the Elucidation of the 1945 Constitution into articles of the 1945 Constitution; and
5. agreed to take an addendum method in making amendments to the 1945 Constitution.
Amendments to the 1945 Constitution were carried out in stages and became one of the agenda of the MPR Session from 1999 to 20022. The first amendment was made in the 1999 MPR General Session. The direction of the first amendment to the 1945 Constitution was to limit the powers of the President and strengthen the position of the People’s Representative Council (DPR) as a legislative body.3 The second amendment was made at the 2000 MPR Annual Session. The second amendment resulted in the formulation of changes to articles covering the issue of state territory and the division of the regional government, completing the first amendment in terms of strengthening the position of the DPR and detailed provisions on human rights.4
The third amendment was determined at the 2001 MPR Annual Session. The change at this stage changes and or adds to the provisions of the article on the basic principles of the state, state institutions, and relations between state institutions, as well as provisions on General Elections.5 Meanwhile, the fourth amendment was made at the 2002 MPR Annual Session. The fourth amendment included provisions on state institutions and relations between state institutions, the abolition of the Supreme Advisory Council (DPA), education and culture, economy and social welfare, and transitional rules and additional regulations.6 The four stages of amendments to the 1945 Constitution cover almost the entire material of the 1945 Constitution. The original text of the 1945 Constitution contained 71 provisions, while the changes made resulted in 199 provisions.7 Of the 199 provisions contained in the 1945 Constitution, only 25 (12%) have not changed. The rest, as many as 174 (88%) items of the provisions, are new or have changed.
From the qualitative side, the amendment to the 1945 Constitution is very basic because it changes the principle of people’s sovereignty, which was originally fully implemented by the MPR to be implemented according to the Constitution. This causes all state institutions in the 1945 Constitution to be equal and carry out the sovereignty of the people within the scope of their respective authorities. Another change is the concentration of power and responsibility upon the President to the principle of checks and balances. These principles emphasize the country’s ideals to be built, namely a democratic rule of law.
After successfully making constitutional changes, the next step must be carried out is
1 The five agreements are attached to MPR Decree No. IX/MPR/1999 concerning the Assignment of the Working Body of the People’s Consultative Assembly of the Republic of Indonesia to Continue Amendments to the 1945 Constitution of the Republic of Indonesia.
2 The MPR Annual Session was only known during the reformation period based on Article 49 and Article 50 of MPR Decree No. II/MPR/1999 concerning the Rules of Procedure of the People’s Consultative Assembly of the Republic of Indonesia.
3 Stipulated on 19 October 1999.
4 Stipulated on 19 August 2000.
5 Stipulated on 9 November 2001.
6 Stipulated on 10 August 2002.
7 Jimly Asshiddiqie, ‘Struktur Ketatanegaraan Indonesia Setelah Perubahan Keempat UUD Tahun 1945’, Symposium conducted by the National Legal Development Agency, Ministry of Justice and Human Rights (Kementerian Hukum dan HAM 2003), p. 1.
the implementation of the amended 1945 Constitution. The implementation of the 1945 Constitution must be carried out, starting from the consolidation of legal norms to the practice of national and state life. As a basic law, the 1945 Constitution must be a basic reference so that it lives and develops in the administration of the state and the life of citizens (the living Constitution).
A Democratic Law State
One of the basic principles confirmed in the amendment to the 1945 Constitution is the principle of the rule of law, as stated in Article 1, Paragraph (3) of the 1945 Constitution.8 Which states that ‘Indonesia is a state of law’. Historically, the legal state (Rechtsstaat) was the idealized state by the founding fathers of the nation, as stated in the general explanation of the 1945 Constitution before the change in the state government system, which stated that the Indonesian state was based on the law (rechtsstaat), not based on mere power (Machtsstaat).9 The idea of the rule of law has long been developed by philosophers from ancient Greece. Plato, in his books “the Statesman” and “the Law,” states that the rule of law is the second best form to prevent the decline of power. The concept of a modern legal state in Continental Europe was developed using the German term “rechtsstaat” by Immanuel Kant, Paul Laband, Julius Stahl, Fichte, and others. Meanwhile, in the Anglo- American tradition, the concept of the rule of law was developed as “The Rule of Law”
pioneered by A.V. Dicey. In addition, the concept of the rule of law is also related to the term nomocracy (nomocratie), which means that the determinant in the administration of state power is the law. 10
The principles of the rule of law always develop following the development of society.
Advances in science and technology, as well as the increasingly complex life of society in the global era, demand the development of the principles of the rule of law. Two main issues that have always inspired the development of the principles of the rule of law are the issue of limiting the power and protecting human rights. Currently, it can be said that there are at least twelve principles of the rule of law. They are the supremacy of law, equality before the law, due process of law, limitation of power, independent and impartial judiciary, an administrative court, constitutional court, human rights protection, democratic (democratische-rehtsstaats), function as means of realizing the goals of the state (welfare rechtsstaat), as well as transparency and social control.11
A state of law requires normative and empirical recognition of the principles of the rule of law that all problems are resolved by law as the highest guideline. Normative recognition of the rule of law is manifested in the formation of legal norms hierarchically, culminating in the supremacy of the Constitution. Meanwhile, empirically, it is manifested in the behavior of government and society, which based themselves on the rule of law. Thus, all government actions must be based on valid and written laws and regulations. These laws and regulations must exist and apply first or precede the actions taken. Thus, every administrative action must be based on rules and procedures.
However, the principle of the rule of law is always accompanied by the adoption and practice of the principle of democracy or people’s sovereignty which guarantees public participation in the state decision-making process so that every legislation applied and enforced reflects the community’s sense of justice. The applicable laws and regulations
8 The results of the third amendment to the 1945 Constitution.
9 The explanation of the 1945 Constitution in the process of amending the 1945 Constitution was omitted by including it in the body material.
10 Jimly Asshiddiqie, Konstitusi Dan Konstitusionalisme Indonesia (Sinar Grafika 2010), p. 152.
11 ibid, p. 154-162.
may not be unilaterally stipulated and applied by and/or only for the benefit of the authorities. The law is not meant to only guarantee the interests of a few people in power but to guarantee the interests of justice for all. Thus the state of law developed is not absolute rechtsstaat, but democratische rechtsstaat.
Based on the principle of the rule of law, it is the law that governs, not humans. Law is interpreted as a hierarchical unit of legal norm order culminating in the Constitution. It means that a state of law requires the supremacy of the Constitution. The supremacy of the Constitution, besides being a consequence of the concept of the rule of law, is also the implementation of democracy because the Constitution is the highest form of social agreement. Therefore, the basic constitutional rules must be the basis and be implemented through laws and regulations governing the administration of the state and people’s lives. Thus, changes to the 1945 Constitution which are fundamental, will certainly affect the system and material of existing laws and regulations. Amendments to the 1945 Constitution have implications for the types of laws and regulations and their content. The existence of changes to the 1945 Constitution, of course, requires changes to the system of laws and regulations, as well as adjustments to the material content of various existing and applicable laws and regulations.
The 1945 Constitution As A Political, Economic, And Social Constitution
As a form of the highest social agreement 12, The Constitution contains the ideals to be achieved by establishing a state and the basic principles for achieving these goals. The 1945 Constitution, as the Constitution of the Indonesian nation, is a legal and political document that contains the ideals, foundations, and principles of the administration of national life.13 Article II of the Supplementary Rules of the 1945 Constitution states that the 1945 Constitution of the Republic of Indonesia is comprised of the Preamble and articles.
14. The preamble and articles are a unity of supreme constitutional norms in the national legal order. The ideals of the formation of our state are known as national goals as stated in the fourth paragraph of the Preamble to the 1945 Constitution, namely (a) protecting the entire Indonesian nation and the entire homeland of Indonesia; (b) promoting the general welfare; (c) educating the nation’s life; and (d) participate in carrying out world order based on freedom, eternal peace, and social justice. These ideals will be implemented in a structure of the Republic of Indonesia that stands on five principles, namely Pancasila, as also stated in the fourth paragraph of the Preamble to the 1945 Constitution.
To achieve these ideals and carry out state administration based on Pancasila, the 1945 Constitution has provided a framework for the structure of the life of the nation and state.
The norms in the 1945 Constitution regulate not only political life but also economic and social life. The founding fathers wanted the Indonesian people to have full sovereignty, not just political sovereignty. So the 1945 Constitution is a political, economic, and social constitution that must be a reference and foundation politically, economically, and socially by the state, civil society, or the market.15 As a political constitution, the 1945
12 Constitutional authority comes from constituent power, which is the authority outside and over the system formed. In a democratic country, the constituent power holders are the people. See Brian Thompson, Textbook on Constitutional Law & Administrative Law (Blackstone Press Limited 1997), p.
13 5.Eric Barendt, An Introduction to Constitutional Law (Oxford University Press 1998), p. 2-7.
14 The results of the fourth amendment to the 1945 Constitution. Before the amendments were made, it was generally accepted that the 1945 Constitution consisted of a preamble, a body, and an explanation.
15 Anang Dony Irawan, ‘Nationalism In A State Based On Pancasila’ (2020) 5 Petita : Jurnal Kajian Ilmu Hukum dan Syariah <http://petita.ar-raniry.ac.id/index.php/petita/article/view/85>; A Ahsi Thohari, ‘The Manifestation of the Rechtsidee of Pancasila in Regulating the Constitutional Rights in Indonesia’ (2019) 4 Petita: Jurnal Kajian Ilmu Hukum Dan Syariah 149; Denny Indrayana, ‘Indonesian Constitutional Reform 1999-2002 an Evaluation of Constitution-Making in Transition’ (University of
Constitution regulates matters of state structure, relations between state institutions, and relations with citizens. This is, for example, regulated in Chapter I concerning the Form of Sovereignty, Chapter II the People’s Consultative Assembly, Chapter III State Government Powers, Chapter V State Ministries, Chapter VI Regional Government, Chapter VII the People’s Representative Council, Chapter VIIA the Regional Representative Council, Chapter VIIB Elections, Chapter VIII Financial Matters, Chapter VIIIA the Supreme Audit Agency, Chapter IX Judicial Power, Chapter IX State Territory, Chapter X Citizens and Residents in particular Article 26, Chapter XA on Human Rights in particular Article 28I paragraph (5), Chapter XII concerning National Defense and Security, Chapter XV the State Flag, Language and Emblem, and National Anthem, Chapter XVI concerning Amendments to the Constitution, Transitional Rules, and Additional Rules.
As an economic constitution, the 1945 Constitution also regulates how the national economic system should be structured and developed. The main provisions of the 1945 Constitution concerning the national economic system are contained in Chapter XIV Article 33. The provisions concerning the national economic system are only in one article consisting of five paragraphs. However, this provision must be elaborated consistently with the ideals and foundations of the state based on the basic concepts desired by the nation’s founding fathers. In addition, the national economic system must also be developed related to human rights, which also includes economic rights, as well as provisions for the welfare of the people.
As a social constitution, the 1945 Constitution regulates social life, especially in Chapter X concerning Citizens and Residents in particular in Article 27 and Article 28, Chapter XA concerning Human Rights, Chapter XIII concerning Education and Culture, and Chapter XIV concerning the National Economy and People’s Welfare in particular in Article 34. These provisions must always be consistently elaborated in order to achieve national goals and to be able to anticipate and provide solutions to the problems of the times following the principles of a democratic rule of law. The developed democracies are political democracy, economic democracy, and social democracy.16
Constitution And National Law System
Rechtsstaat, or the Rule of Law, is the idealized state concept by the founding fathers of the nation who discussed and formulated the 1945 Constitution, as stated in the explanation of the 1945 Constitution before the amendment. The affirmation as a state of the law was strengthened in the 1945 Constitution after the amendment to Article 1 paragraph (3), which reads, “The State of Indonesia is the State of Law”.17 As a state of law, the law must be understood and developed as a unified system. As a system, the law consists of some elements (1) institutional, (2) instrumental, (3) the behavior of legal subjects who bear the rights and obligations determined by the norms of the rules (subjective and cultural elements). The three elements of the legal system include (a) law-making, (b) law administrating, and (c) law adjudicating, or what is commonly referred to as law enforcement in a narrow sense.
In addition to the activities mentioned above, several other activities are often forgotten, namely (d) law socialization and law education broadly and also includes (e) law information management. Both activities are supporting activities whose contribution
Melbourne 2005).
16 Daniel Fitzpatrick, ‘Land, Custom, and the State in Post-Suharto Indonesia: A Foreign Lawyer’s Perspective’ in D Davidson, J., Henley (ed), The Revival of Tradition in Indonesian Politics: The Deployment of Adat from Colonialism to Indigenism (Routledge 2007).
17 Article 1, paragraph (3) is the result of the Fourth Amendment to the 1945 Constitution.
is increasingly important to the national legal system. The five activities in the legal system are usually divided into three areas of state power functions, namely (i) legislative and regulatory functions, (ii) executive and administrative functions, and (iii) judicial functions.18 The legislative body is a parliamentary institution, the executive body is the government bureaucracy, and the judicial body is the law enforcement apparatus bureaucracy, including the police, prosecutors, and courts. All bodies must be linked with their respective hierarchies starting from the highest to the lowest, related to the apparatus at the central, provincial, and district/city levels.
All elements, components, hierarchies, and aspects that are systemic and interrelated with each other are included in the notion of a legal system that must be developed within the framework of the Indonesian rule of law based on the 1945 Constitution. If the dynamics relating to all these aspects, elements, hierarchies, and components does not work in a balanced and synergistic manner, then the law as a unified system cannot be expected to be realized as it should. Currently, there is still a tendency to understand the law and legal development partially on certain elements that are sectoral. So I often mention the importance of formulating and formulating the concept of the Indonesian rule of law as a unified system. All existing legal institutions should be seen as part of the overall legal system that needs to be developed within the framework of the rule of law. For that, the Indonesian people need to compile a blueprint as a macro design of the State of Law and the National Legal System that we want to build and enforce.
One of the elements in the national legal system is the rule of law. These regulations are in the form of statutory regulations, which can only be said to be a legal system in a national legal system if their validity can be traced directly or indirectly to the Constitution.19 The legal system, as the personification of the state, is a hierarchy of laws and regulations with different levels. The unity of these laws and regulations is composed of the fact that the making of lower laws and regulations is determined by other higher laws and regulations.20 Legislation in Indonesia as a national legal system is also structured hierarchically. The hierarchical relationship is fully established and culminates in the Constitution, which is known as the principle of constitutional supremacy in a state of the law.
Implications Of The Amendment Of The 1945 Constitution On The Development Of The National Law System
As a consequence of the supremacy of the Constitution and the hierarchy of laws in a legal system, the amendment to the Constitution requires amendments to the laws in
18 Montesquieu, The Spirit of the Laws (G Bell & Sons, Ltd 1914), Part XI, Chapter 67.
19 Hans Kelsen, General Theory of Law and State (Russell & Russell 1961), p. 115 and 123-124; Hans Kelsen, “Pure Theory of Law’ (1934-1935) 50 and 51 Law Quarterly Review P518; Mary Barkan, Steven M. and Bintliff, Barbara and Whisner, ‘Fundamentals of Legal Research’ (2015); Sanne Taekema, The Concept of Ideals in Legal Theory (Kluwer Law International 2003).
20 Hans Kelsen, General Theory of Law and State (n 19), p. 124. Some authors state that the theory of Adolf Merkl influences the theory of the hierarchy of norms, or at least Merkl wrote the theory before Hans Kelsen, which Jelić calls the “stairwell structure of legal order”. Merkl’s theory is about legal stages (die Lehre vom Stufenbau der Rechtsordnung) that law is a hierarchical system of rules, a norm system that conditions and is conditioned, and legal action. Conditioning norms contain conditions for the creation of other norms or actions. This hierarchical creation manifests as regression from a higher legal system to a lower legal system. This process is always a process of concretization and individualization. See Zoran Jelić, ‘A Note On Adolf Merkl’s Theory Of Administrative Law’ (1998) 1 Journal Facta Universitatis, p. 149. Compare with Ian Stewart, ‘The Critical Legal Science of Hans Kelsen’ (1990) 17 Journal of Law and Society, p. 283. See also, Obikwu, ‘The Federal Constitution, National- Ethnic Minority Groups and the Creation of States: The Post–Colonial Nigerian Experience’
(2017) 2 PETITA: JURNAL KAJIAN ILMU HUKUM DAN SYARIAH <http://petita.ar-raniry.ac.id/index.
php/petita/article/view/56>.
the legal system, as well as their implementation by competent authorities.21. Likewise, amendments to the 1945 Constitution, which are quite basic and cover almost all of the provisions contained therein, must be followed by an amendment to the legislation under it and its implementation by competent bodies. The existing statutory provisions originating from certain provisions in the 1945 Constitution before the amendment must be reviewed for their conformity with the provisions resulting from the amendments to the 1945 Constitution.
As soon as the constitutional reform agenda has been successfully implemented, we must continue with the legal reform agenda (law formation and reform). If we look at the provisions in the 1945 Constitution after being amended four times, there are 22 provisions that state “to be regulated by law” or “further regulated by law”; 11 items of provisions that state “to be regulated by law” or “further regulated in law”, and 6 points of provisions stating “stipulated by law. These provisions mandate the need for legal reform as a form of implementation of the 1945 Constitution. The areas of law requiring such establishment and reform can be grouped according to the areas required, for example:
1. Politics and government.
2. Economy and businesses.
3. Social welfare and culture.
4. Structuring the legal system and apparatus
As a unified legal system, efforts to amend legislation to adapt to the amendments to the 1945 Constitution are an inseparable part of the overall development of national law.
Therefore, amendments to various laws should be carried out in a planned and participatory manner in the national legislation program as well as in the form of legislative review.
The national legislation program must be prepared first and foremost to implement the provisions of the 1945 Constitution. Based on the provisions of the 1945 Constitution, it is possible to elaborate on the laws that must be made in the national legislation program in the political, economic, and social fields.
In addition, the public can apply for a constitutional review to the Constitutional Court against laws deemed detrimental to their constitutional rights in the amended 1945 Constitution.22 The public can also submit a judicial review to the Supreme Court of laws and regulations under the Act, which are considered contrary to the Act. Decisions on judicial review of the 1945 Constitution made by the Constitutional Court on various petitions for judicial review must also be considered in efforts to develop national laws, especially changes to legislation.23 These decisions contain definitions and concepts related to the meaning and understanding of a provision in the Constitution. So far, there
21 Law can be categorized into four groups of legal meanings seen from law-making and formation.
They are State’s Law, People’s Law, Professor’s Law, and Professional Law. See Jimly Asshiddiqie, Hukum Tata Negara Dan Pilar-Pilar Demokrasi (Konstitusi Press 2005), p. 4.
22 Based on Article 50 of Law Number 24 of 2003 concerning the Constitutional Court, the constitutional review authority of the Constitutional Court is limited only to laws enacted after the first amendment to the 1945 Constitution. 04/PUU-I/2003 Article 50 of the 2003 Law was set aside by the Constitutional Court because it reduced the authority of the Constitutional Court based on the 1945 Constitution.
23 A broad judicial review process that includes constitutional review has become a means of upholding the supremacy of the Constitution in modern democracies. O. Hood Phillips and Paul Jackson, Constitutional And Administrative Law (Sweet & Maxwell Ltd 2001), p. 7-8; Robert Alexy, A Theory of Constitutional Rights (Oxford University Press 2002); Jason Mazzone, ‘The Creation of a Constitutional Culture’ (2005) 40 Tulsa Law Review 671; Nikolai G. Wenzel, ‘Beyond Parchment, beyond Formal Rules: Constitutional Culture and Constitutional Political Economy’ 8 ama-gi The Journal of the Hayek Society of the London School of Economics; Constitutional Council Of Cambodia, ‘What Is the Constitutional Council?’ (2013); Muhammad Siddiq Armia, ‘Constitutional Courts And Law Reform:
A Case Study Of Indonesia’ (Anglia Ruskin University, Cambridge, United Kingdom 2016).
have been various decisions of the Constitutional Court in the political.24, economy25, and social26Sectors related to the provisions in the 1945 Constitution.
Amendments to the 1945 Constitution and changes to the legislation under it must also be followed by institutional changes according to the new paradigm and provisions, as well as changes in awareness and culture of implementing laws and regulations. This becomes very important because the old legislation has formed institutional, legal and bureaucratic cultures that are not easily removed and replaced. Therefore, it is necessary to refresh and re-grow constitutional awareness and legal culture based on the results of the amendments to the 1945 Constitution. Several forums have been created to formulate national law development programs, such as the National Law Seminar, Law Summit, and other seminar forums. The more forums that examine the development of national law, the more problems will be revealed, and plans will be made. However, the results of the various forums must, of course, be synchronized and integrated as a blueprint for the development of national laws that serve as guidelines and are implemented by all parties.
Constitutional Awareness Culture
We certainly want the 1945 Constitution to be the one that is implemented in the practice of national and state life in order to achieve common goals. The Constitution binds all state institutions and all citizens. Therefore, the implementers of the Constitution are all state institutions and all citizens per their respective rights and obligations as regulated in the 1945 Constitution. From a legal perspective, the word “implementation” consists of two functional concepts: first, identifying constitutional norms and specifying their meaning;
second, crafting doctrine or developing standards of review.27 So that every institution and all citizens can carry out national and state life based on the 1945 Constitution, it is necessary to have a constitutionally conscious culture. To foster a conscious culture of the Constitution, it is necessary to understand the basic values and norms that are the subject matter of the Constitution. This understanding becomes the basis for the community to always use the Constitution as a reference in society, nation, and state life.
Suppose the public has understood the basic norms in the Constitution and implemented them in the life of the nation and state. In that case, they must know and be able to defend their constitutional rights guaranteed in the 1945 Constitution. In addition, the community can fully participate in the implementation of the 1945 Constitution through the implementation of their rights and obligations as citizens, participate in the administration of the state and government, and exercise control over the administration of the state and the running of the government. This condition will automatically prevent irregularities or misuse of the Constitution. One tangible form of the importance of a constitutional awareness culture for the implementation of the Constitution is related to
24 For example, the Decision of the Constitutional Court on Case Number 011-017/PUU-I/2003 restores the passive and active political rights of former members of the PKI and other prohibited organizations by stating that Article 60 letter g of Law Number 12 of 2003 concerning General Elections for Members of the House of Representatives, the Regional Representative Council, and the Regional People’s Representative Council (State Gazette of 2003 Number 37, Supplement to the State Gazette Number 4277) are contrary to the 1945 Constitution and have no binding legal force.
25 For example, the Constitutional Court Decision No. Case 002/PUU-I/2003 in the case of the petition for the constitutionality of Law no. 22 of 2001 concerning Oil and Gas, and the Constitutional Court Decision No. Case 001-021-022/PUU-I/2003 states that Law no. 20 of 2002 as a whole does not have binding legal force because the articles that were tested and declared contrary to the 1945 Constitution, namely Article 16, Article 17 paragraph (3), and Article 68 are the heart of Law no. 20 of 2002.
26 For example, Decision No. Case 011/PUU-III/2005 in the case of the application for judicial review of Law no. 20 of 2003 concerning the National Education System.
27 Jr Richard H. Fallon, Implementing the Constitution (Harvard University Press 2001), p. 37 – 38.
the authority of the Constitutional Court to examine laws against the Constitution. The examination is carried out to determine whether a provision in a law contradicts or not with the 1945 Constitution. However, in this case, the Constitutional Court cannot act actively. The Constitutional Court can only exercise this authority if there is a request for judicial review of a law submitted by the public.
In submitting this application, it is necessary to have a constitutional awareness culture in the form of awareness of their constitutional rights as citizens, both as individuals and groups, that a statutory provision has violated constitutional rights. On the other hand, awareness is also needed to protect violated constitutional rights by submitting a request for a constitutional review of the provisions of the law that are detrimental to it. In the absence of constitutional awareness, people will not know whether their rights have been violated or not and will not make constitutional efforts to get protection. As a result, the 1945 Constitution will be violated by many statutory provisions so that the Constitution will only become a document on paper without being implemented in practice.
Therefore, there must be continuous efforts to build a constitutional awareness culture.
It is created not only to know the basic norms in the Constitution. More than that, real experience is also needed to see and apply the Constitution in the practice of community, nation and state life. Therefore, cultivating a constitutional awareness culture is a long and continuous process. One of the problems faced in the effort to bring the 1945 Constitution as our Constitution to the general public and to foster the living Constitution is that discussions of constitutional issues and the content contained therein always use frameworks of thought, theoretical references, and practice references originating from abroad. We do not have constitutional or political experts who master Customary Constitutional Law.
Conclusion
The study of the constitutional history of the Indonesian nation has so far been limited since Dutch colonialism. Previously, there were kingdoms in the archipelago with their administrative systems and structures that could be compared to the modern administrative system. For example, the division of power functions between the legislature, executive, and judiciary has been established. However, the power of the King is quite dominant because he is the head of all institutions that carry out these functions. Even the democracy principles are starting to appear because decisions are made by deliberation by community representatives, although the final decision remains with the highest leadership. These historical facts can be found in kingdoms and other government units in various archipelago regions. By elaborating on the experience of the Indonesian people themselves and being linked to the developments that occurred in the 1945 Constitution, the public will feel that the systems and thoughts that are the subject matter of the 1945 Constitution are no longer strange but grow and develop along with the growth and development of the Indonesian people. Suppose this is accompanied by efforts to bring the 1945 Constitution closer to the community, for example, through its writing in regional languages and letters. In that case, the public can make the 1945 Constitution the foundation of life in society, as a nation, and state. The public will be able to respond to the problems they face based on constitutional norms. This is the beginning of the development of life and constitutional thought under the conditions and development of society known as the living Constitution.
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Obikwu, ‘The Federal Constitution, National- Ethnic Minority Groups and the Creation of States: The Post–Colonial Nigerian Experience’ (2017) 2 PETITA: JURNAL KAJIAN
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Richard H. Fallon J, Implementing the Constitution (Harvard University Press 2001) Robert Alexy, A Theory of Constitutional Rights (Oxford University Press 2002)
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Constitutional Rights in Indonesia’ (2019) 4 Petita: Jurnal Kajian Ilmu Hukum Dan Syariah 149
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Article 1, paragraph (3) is the result of the Fourth Amendment to the 1945 Constitution Article 49 and Article 50 of MPR Decree No. II/MPR/1999 concerning the Rules of
Procedure of the People’s Consultative Assembly of the Republic of Indonesia Article 50 of Law Number 24 of 2003 concerning the Constitutional Court
MPR Decree No. IX/MPR/1999 concerning the Assignment of the Working Body of the People’s Consultative Assembly of the Republic of Indonesia to Continue Amendments to the 1945 Constitution of the Republic of Indonesia
