Constitutional Law

08 March 2022 12:33

There is a significant different between theory of state and constitutional law.

In constitutional law, there are 4 credits. At least you get a B plus for your grade. There so many topics
to be covered.

Try to analyze every issue with the positive law, and theory and formulate into an answer.

The best term for constitutional law, is Introduction to Indonesian constitutional law

4 ELOs before mid-exam

Look as much as definition, object, source, and general principle Indonesian constitutional law. General
limitation (look for it)

CONSTITUTIONAL LAW Page 1

General of Constitutional Law
08 March 2022 13:23

Definition - Constitutional law is a body of law that establishes the function, powers, and structure of
various bodies within a state.

The object of constitutional law is a reason why they need validation which must be included in the
constitution.
What is an object in a Constitution?
When people come together and form a group in civil society, whether as a company or an association,
their reasons need to be clearly stated in a constitution. These reasons are known as objects

Theory of state - we put the state as the object

Constitutional law also put the state as the object

In constitutional law we only define the structure and its authority

Administrative emphasize about the process and implementation
Constitutional is about finding about the exact authority

If the authority is legal based on the constitution then it would be proper to enact the objectives

Constitutional law - President has the authority to make the decision.

Administrative law - the process of having ex ISIS back to Indonesia

CONSTITUTIONAL LAW Page 2

SOURCES OF CONSTITUTIONAL LAW
15 March 2022 13:05

There are 2 sources of law:

Materiil source of law - how the law get the substance
Formal source of law - how the law get the legitimation

The materiil source of law is based on the historical event.

Why doctrine is kept as formal law according most of the scholars?
It is because there were only few scholars in that time, and their opinion can turn into the law by giving
the opinions to the government, that is why most scholars kept doctrine as source of formal law.

Nowadays, doctrine is kept as materiil source of law because doctrine is not compatible to make a
law.

Formal and materiil source of law has a direct relation between them. To make a formal law, we need
to consider the materiil source of law.

If doctrine is kept as formal source of law - there would be a chaos in the system, because we cannot
accept all opinions in order to propose it as a law.

CONSTITUTIONAL LAW Page 3

CONSTITUTIONAL LAW Page 4
GENERAL PRINCIPLES
16 March 2022 12:38

"General principles" are critical in addressing the boundaries of regulations derived directly from
legislation.

Check and balances

In constitution mainly use 2 terms - (approve and consideration)
There are 2 organ state that is involved in check and balance - example:
DPD AND DPR -DPR is responsible to supervise the DPD.

Art 14:
1) The President grants clemency and rehabilitation by paying regard to the consideration of the
Supreme Court.

CONSTITUTIONAL LAW Page 5

 Supreme Court.
2) The President grants amnesty and abolition by paying regard to the consideration of the People’s
Representative Council.

ART 24 C
3) The Constitutional Court shall have nine members of constitutional court justices to be designated
by the President, respectively three people to be proposed by the Supreme Court, three people by
the People’s Representative Council, and three people by the President.

- Declare State of Emergency (Article 13 Section 2)

- Create Governmental Rules (Article 5)
- Appoint ministers ( Article 17 )
- Lieu of law (Article 22 Section 1)

The constitution give privilege position for 3 ministers:

Menhan
Menlu
mendagri

CONSTITUTIONAL LAW Page 6

HIERARCHY OF LAW
22 March 2022 12:58

When there is a contradiction between articles with higher norm then there have to be an examination.
We have two organ states to examine peraturan UU:
1. Mahkamah agung (24 A (1)) UUDN
2. Mahkamah konstitusi

The constitution doesn’t mention the authority to examine perppu. The source of law doesn’t only come

CONSTITUTIONAL LAW Page 7

The constitution doesn’t mention the authority to examine perppu. The source of law doesn’t only come
written law. There is also jurisprudence. Jadi perppu diujikan ke MK, para lawyer berdalih bahwa ini
sangat mungkin diuji di konstitusi karna PERPPU memiliki hierarchy yang sama dengan UU. (historical
event). UUD adalah norma yang senantiasa berkembang. Constitution get the changings and the
movement. That is the power of constitution, it also regulates kewenangan untuk menguji perppu yaitu
DPR

Ada dua untuk menguji perppu: kewenangan untuk menguji perppu adalah DPR dan mahkamah
konstitusi.

PERPPU -

CONSTITUTIONAL LAW Page 8

HISTORY OF CONSTITUTION
05 April 2022 12:42

1. UUD 1945
2. RIS CONSTITUTION 1949
3. UUDS 1950
4. UUD 1945 THAT HAS BEEN REIMPOSED

In the beginning of the ratification of UUD 1945 there was no political party. We don’t have political
party, that is why we have special commission which is BPUPKI. UUD 1945 is known as revolutie
grondwet because they needed to establish the constitution quickly at that time and it UUD 1945 was
not a permanent constitution. Revolutie grondwet simply means temporary constitution. It does not
matter when indonesia change its constitution to others because it was just temporary.

Revolutie grondwet just only a temporary constitution - when the government must change the
constitution. Because there is a urgency to establish constitution so it must made by BPUPKI and PPKI.
We only keep that for short period. After they made UUD 1945, we establish political party (masyumi,
pki, etc.)
]
And then we change the constitution RIS. And then to UUDS 1945. But all have the same intention. We
held the first election in 1955 and dewan konstituante won the election. Dewan konstituante has the
responsibility to formulate definitive constitution. However dewan konstituante failed to do the task
properly.

We have different intention to make the one ideology. The konstituante did not failed but being framed
(factual). By soekarno. Soekarno with his own intention made dewan konstituante fail.

Adnan buyung nasution - aspirasi konstitusi read!!

Konstitualisme - pembatasan masa jabatan presiden. But the project of dewan konstituante which has
great ideas, but being taken down by soekarno itself. President soekarno is worried about his position as
a president, if president soekarno legalize the ideas of dewan konstituante the term of president is being
limited. (Tergoda dengan kekuasaan)

CONSTITUTIONAL LAW Page 9

limited. (Tergoda dengan kekuasaan)

Kita tidak akan puas dengan kekuasaan sampai mulut disumbat dengan tanah.

In past constitution made by BPUPKI and PPKI there is no limitation of president term. So soekarno and
soeharto want to keep the power as long as they could.

CONSTITUTIONAL LAW Page 10

ORDE BARU DAN DEMOKRASI TERPIMPIN
06 April 2022 12:49

Standards to acknowledge Authoritarian state:

1. Leader has absolute power
2. No human rights protection
3. No independent justice
4. No periodic and fair election

Political party that comes from islamic background got disband by soekarno. In guided democracy,
president can interfere with any court decision. There was no independent justice. The justice is depend
on the president's will.

ORDE BARU
In the past we cannot criticize the government. When we start to publish magazine, the accessor must
supervise the publisher in order not to spread their public opinion.

So many scholars said that guided and orde baru explain!

1. You have to write standards authoritarian state
2. Provide evidence for each guided and orde baru.

Presiden bisa mengubah negara demokratik menjadi otoriter dengan emergency situation, sehingga bisa
melegitimasi segala perbuatan untuk mendpatkan kekuasaan.

CONSTITUTIONAL LAW Page 11

STATE OF EMERGENCY
13 April 2022 12:36

Ada hal yang bisa berpengaruh yang mengakibatkan negara untuk punah.
This makes the president to have authority to enact fast decision. To overcome dangerous situation.
Every democratic states has their own dangerous clause in their constitution. This happened and
arranged in indonesia constitution as well: article 12

Corona virus - emergency public of health

Disaster emergency - cause by nature and non-nature

In indonesia there is art 12 that says about emergency situation.

The Elements of State Emergency:
• State Interest and Extraordinary Efforts
• The objective should be overcome as soon as possible
• The circumstances cannot be overcome by normal procedure

The president and his policies during pandemic, the president limit our human rights. To go to other city
we need to have a pcr test or fully vaccination. State emergency cannot be done with normal
procedure.

This is the law that defines state emergency based on the constitution.

Emergeny of war is the fourth type of state of emergency

CONSTITUTIONAL LAW Page 12

So in the first step when there is a massive of rebellions and turmoil then it is emergency of civil. But
when it is becoming worse, then it improves into emergency of military.

Emergency of disaster caused by nature - in aceh tsunami enacted that this is emergency of disaster, the
government broke and also legislation broke.

GAM (sepertist movement) 2003-2004 - emergency of military because it is a threat for the country

President jokowi enact emergency of disaster especially emergency of public health. So jokowi can
interfere with the rights of citizen in order to protect citizen.

The other impact of state emergency is giving the president a huge legitimation. To disobey with the
constitution and the law. Sometimes it becomes the turning point of a president when he has full
authority of everything.

Where is the legal basis of the state emergency in indonesia constitution?

Legal vacuum and state emergency is quite different

One of the prerogative right of president is to declare state of emergency.

Declare of war needs to be approve by DPR.
What is the difference between art 23/59 and art 12 1945 constitution about war?
In the law 23/59 we give the declare of war as prerogative rights, no approval and consideration. But the
it is difference in art 12 it is not prerogative rights because need approval by the DPR. What kind of law
must be obey by the president if there is 2 regulation about declare of war? Lex superior derogat legi
inferior. President must obey the constitution.

Answer with legal basis.

How about when indonesia overcome the pandemic situation? What kind of law pandemic situation?
Law no 23 does not arranged about but government use UU karantina, law no 6 2018.

Perppu cannot contradict with the human rights

But state of emergency can disobey that

CONSTITUTIONAL LAW Page 13

Article 12 - Emergency give the legimitation for president to disobey the law and human rights.
Article 22 - only make a new law in order to overcome legal vacuum. To avoid a long process of making a
law.

CONSTITUTIONAL LAW Page 14

REVIEW MID UTS
19 April 2022 12:42

Opened book
1. Definition, relationship of consti law
2. General principle and sources
3. The history of Indonesian consti
4. State of emergencies

How to answer question with effort less

1. Constitutional law (structure): president declare emergency situation
Administrative law (process): president enact government regulation
International law (state relation): how indonesian government postponed visa from other country
2. Mention the articles about check and balances
3. Declare emergency
Government regulation
Government minister
4. Supreme court 24 A(1) of The Constitution 1945
5. Law (UU) needs a lot of time
Perppu doesn’t need a lot of time (doesn’t need DPR consideration/approval)
After a year perppu has to be recommended to be a law.
6. UU No.19 tahun 1964
7. Because the uud 45 pre amandement doesn’t set limitation of office regards the president
8. No it doesn’t relate no emergency declaration before president set perppu
9. PRP 23/1959; doesn’t need approval DPR
Pasal 11 uudn: need approval of dpr
10. Uu no 6/2018

CONSTITUTIONAL LAW Page 15

AMANDEMENT UUD
07 June 2022 12:41

Why there was a huge turmoil in 1997/98

- No freedom of speech
- No human rights protection
- Unfair justice
- Corruption and nepotism
Regulator,watcher, and the candidate of the election is only one.

Reason why they made a huge riots

1. President soeharto collapse
2. Amending the constitution

Reasons of indonesian constitutional change

1. Historical: revolutie grondwet
2. Philosophical: constitution is not eternity document, we know the constittution just comprised the
political preferences
3. Substantive: the all powers concentration under the presidents (executive heavy). Just looking for
the authority without check and balances.
4. Theoretical: every constitution must set a way of revision/amendment
5. Practical: the government ever change the constitution in the early independence

Reinforce the presidentialism

Define more about substantive reason and give example2

The constitution was very weak because there was no limitation of power.

Minimum core indonesian constitutional change

1. Do not change the preamble
2. Reinforce the presidentialism
3. Keep alive the unitary states
4. The amendment method by addendum (there is some clause that we have to keep) ex: ****
5. Erase the explanation article

Partai kecil selalu menjual idealisme

Why do we have to erase the explanation?

1. To make the constitution a living norm, it is to let the judges to do the interpretation themselves
because uud always move and adapt to our social development. The constitution should always
follow the development.
2. So that the explanation cannot be mistaken as also the new laws.

CONSTITUTIONAL LAW Page 16

ORGAN STATE AFTER AMANDEMENT
14 June 2022 12:49

Organ state after amandement

- Kpk
- Bpu
- Bpk
- Dpd
- Ky
And many more…

1. First row: Lembaga negara berdasarkan nama (huruf kapital), disebut fungsi atau
kewenangannya. Example: President, MPR, DPR, DPD, MA, MK, KY, BPK,
2. Second row: Lembaga negara berdasarkan nama (huruf kapital) dan disebut fungsi namun
kewenangan di atur melalui undang-undang. Example, TNI, Polri, Gubernur, Bupati, Walikota, DPRD,
Kemenlu, Kemendagri, Menhan
3. Third row: Lembaga negara tidak berdasarkan nama (huruf non kapital), disebut fungsinya
namun kewenangan diatur melalui undang-undang. Example: kpu, ministerss
4. Foruth row: Lembaga negara tidak berdasarkan nama ( huruf non kapital) juga fungsi, namun
kewenangannya di atur melalui undang-undang. Example: bank central, duta konsul,

KBBI: asal mula, bentuk rupa/badan

Hans Kelsen: "whoever fulfills a function determined by the legal order is an organ"
Political instituttion/state organ/lembaga negara

"whoever fulfills a function determined by the legal order is an organ" (wide definition)
Personally has a specific legal position in written law (narrow definition)

Mpr was the highest organ state because they hold our sovereignty. After amandement mpr was not the
highest organ state because it doesn’t hold the sovereignty again. Now the people has the highest
authority.

Sri soemantri: organ state is a body that implements the actual government process in the executive,
legislative and judicial, also independent branch.

Befrore mpr distributes to president, dpr,MA - but now they have horizontal relation because they are
all equal.

Presidents authority
1. Propose bills (Legislation role)
2. Appoint the minister (governance role)
3. Declare war, make peace, and treaty (governance role)
4. Appoint ambassador (governance role)
5. Enact law in lieu (perpu) (legislation role)
6. Declare state of emergency (governance role)
7. Grant honorary title (administrative role)
8. Grant rehabilitation. Clemency, amnesty, abolition (judicial role)
9. Establish advisory body (governance role)
10. Enact government regulation (legislation role)
11. Legalize or inaugurate public officers and members of judicial councils (administrative role)

CONSTITUTIONAL LAW Page 17

4 Roles of president.
1. Governance role
2. Legislation Role
3. Judicial role
4. Administration role

The constitution give the authority to president in post amendment.

CONSTITUTIONAL LAW Page 18

LEGISLATIVE ROLES
22 June 2022 13:03

DPR and DPD

DPR need a political party, while DPD doesn’t need a political party.
Political party play a key part if you want to be a member of DPR.
Not all parties can get into DPR as members. There is a term called parliamentary threshold. Minimum
of 4% voice.
In order to be a president there is presidential threshold for 20% in order to be candidate for president.

Legislative function
1. Legislation (propose and approve the bill)
2. Budgeting (propose and approve APBN)
3. Supervision (approval and consideration)

DPR memiliki hak angket, hak interplasi, hak menyatakan pendapat.

DPD's authority
1. Propose bill in the regime authority (article 22D - propose and discuss, no authority to approve the
bill)
2. Give consideration to APBN (ARTICLE 23)
3. Supervision implementation in regional autonomy -

Unikamelar: one chamber

Bikameral: two chambers

How the parliament system around the world

In democratic state - legislative power divided into two:
Indonesia adopt unicameral before amendment which is the DPR. Who's the DPR? The DPR is the MPR
itself
Indonesia adopt bicameral after amendment which consist of two chambers which are - DPR and DPD

Legislative roles -
1. Composition:
• DPD represents their region
• DPR represents their political party - (article 20 - dpr has the right to propose bill and approve)
(Article 23 propose and, discuss, approve APBN)

DPR has angket, interplasi, dan hak untuk menyatakan penndapat. Ini semua merupakan alat dari DPR
untuk melakukan fungsi pengawasan.
In post amendment indonesia adopt "soft bicameral". Because DPR is stronger than DPD. So there is an
imbalance in the power of two legislative power. MPR is the joint session of DPR and DPD

MPR function:
Amend constitution
Inaugurate president
Discharge president or vice president.

DPD powers
Propose and discuss the bill in local government (semi legislation)
Supervise the implementation of the law in local government (semi supervision)
DPD give the consideration in discussion of state budgeting (semi budgeting)

CONSTITUTIONAL LAW Page 19

DPD give the consideration in discussion of state budgeting (semi budgeting)

Interpellation is requesting for information, there is no consequences for this.

Peradilan terhadap jabatan publik - jaksa dan kepolisian are under control by the president.

CONSTITUTIONAL LAW Page 20

PRESIDENTIALISM AND PARLIAMENTARY
05 July 2022 12:42

PM has to take support from political party to fix his position in the parliament. PM may get discharged
with political reason.
Presidentialism - president only discharge by the law reasons (article 7A)
1. Treason of state
2. Bribery
3. Corruption
4. Disgraceful act
5. Unqualified enough to be president/vice president
6. Termasuk tindak pidana berat yang merupakan tindak pidana diatas 5 tahun tuntutannya.

Procedure:
DPR (2/3 must be filled, the rights of interpellation and declare opinion)+ MK (must approved) + MPR
(persetujuan 2/3, minimum presence 3/4, DPR and DPD)
DPR must fulfil 2/3 of member, and then must be approved by MK and get legalized by MPR

Article 20 section 2 get mutual approve by the DPR to legalize the law.

CONSTITUTIONAL LAW Page 21

JUDICIAL POWER
12 July 2022 12:43

JUDICIAL POWER - independent of judiciary (after third amendment)

Because we have bad experience before, president has the authority to interfere the judicial decision.

Judicial independent impact:

1. Function - political actor forbidden to interfere the process of justice
2. Organization - no one court institution under executive and legislative power (must be separate)
3. Tenure (jabatan)/offices - protection to the tenure of justice (post democratic doesn’t allow
tenure to obey with the president)

24A - supremen court A

Authority:
1. Adjudicate in cassation
2. Examine the regulation under the law

Obligation:
1. Give opinion towards clemency and rehabilitation

A candidate supreme court justice shall be proposed by the Judicial Commission to the People’s
Representative Council in order to acquire approval and furthermore to be designated as supreme court
justice by the President.

Organization under supreme court:

1. General court
2. Islamic court
3. Administrative court
4. Military court

24C - constitutional court

Authority:
1. Examine the law under the constitution
2. Dispute of state institution
3. Dispute of dissolution of political part
4. Dispute of general election

Obligation:
1. Give answers regarding impeachment clause

CONSTITUTIONAL LAW Page 22

Jci
25 July 2022 20:20

CONSTITUTIONAL LAW Page 23

CONSTITUTIONAL LAW Page 24
CONSTITUTIONAL LAW Page 25
MK - karna kalo MA yang mengadili itu nanti gaada penuntut umumnya, polisi dan kejaksaan itu
dibawah presiden. Meskipun dakwaan pidana pertanggungjawabannya tetap politik bukan hukum.

CONSTITUTIONAL LAW Page 26