IDEOLOGY, PANCASILA, AND THE CONSTITUTION
In principle there are three main meanings of the word ideology, namely (1) ideology as
false consciousness, (2) ideology in a neutral sense, and (3) ideology in the sense of
belief that is not scientific. Ideology in the first sense, namely as false consciousness is
usually used by the philosophers and social scientists. Ideology is the theories that are not
oriented to truth, but in the interests of the parties mempropagandakannya. Ideology is
also seen as a means of class or a particular social group in power to legitimize his rule.
The second meaning is ideological in the sense neutral. In this case the ideology of the
whole system of thought, values, and basic attitudes of a particular social group or
culture. The second meaning is found mainly in countries that are considered important to
have a "state ideology". Referred to as neutral in the sense of good or bad depends on the
content of this ideology.
The third meaning, ideology as a belief that is not scientific, are commonly used in
philosophy and social sciences are positivistic. Any thoughts that can not be proved
logically, mathematically or empirically is an ideology. All ethical and moral issues,
normative assumptions, and metaphysical ideas included in the ideology.
Three meanings of the word ideology, which is intended in this discussion is the ideology
in a neutral sense, namely as a system of thought and values of a group. In the neutral
sense of ideology found its form in the ideology of the state or nation ideology. This is
consistent with the discussion of the state ideology Pancasila as the Republic of
Types of Ideology
There are two types of ideology as the ideology of a country. The second type is a closed
and open ideology ideology. Doctrine or ideology is a closed world view or philosophy
that determines the goals and norms of political and social, who was ordained as a truth
that should not be questioned again, but must be accepted as something ready-made and
must be obeyed. Truth should not be a closed ideological question based on the values or
moral principles to another. Dogmatic and a priori so that its contents can not be changed
or modified based on social experience. Because it does not tolerate ideological
worldview or other values.
One characteristic of a closed ideology is not only decide the truth values and basic
principles, but also determine the things that are concrete operational. Closed ideology
does not recognize the right of each people to have confidence and discretion. Closed
ideology demanded obedience without reserve.
Another characteristic of a closed ideology is not sourced from the public, but of the
mind that must be propagated to the elite of society. In contrast, the merits of the view
that emerging and developing in the community assessed the suitability of the ideology.
Its own ideology should be closed and followed the policies imposed by certain elites,
which means that the authoritarian and run in a totalitarian.
The best example of the ideology of Marxism-Leninism is closed. Developed ideology of
Karl Marx thought, followed by Vladimir Lenin Ilianov contains a system of thought
starting from the level of values and principles and to develop practical operational in
civic, state and nation. The ideology of Marxism-Leninism includes teaching and
understanding of (a) the nature of the natural reality of the doctrine of dialectical
materialism and atheism; (b) teaching of historical significance as historical materialism,
(c) rigid norms of how society should be organized, even about how individuals should
live and (d) the legitimacy of the monopoly of power by a group of people in the name of
The second type is an open ideology. Ideology is open only contain basic orientation,
while the translation into the goals and norms of social and political can always be
questioned and adjusted values and moral principles developed in the community.
Operational goals to be achieved can not be determined a priori, but must be agreed upon
democratically. Ideology itself is open and inclusive, not totalitarian and can not be used
to legitimize the power of a group of people. Open only to existing ideology and
fabricated in a democratic system.
Development of the ideology of the World
The term ideology of the state is more often used in conjunction with the development of
thinking that made Karl Marx as a state ideology in the 18th century. But the real
conception of ideology as a worldview or system of thought of a nation based on certain
basic values and principles have existed before the birth of Marx himself. Even the initial
and core of the teachings of Marx is a criticism and a lawsuit against the system and
exploitative social structures based on capitalist ideology.
Of thought developed by Karl Marx and Engels and Lenin later referred to as the
ideology of socialism-communism. Socialism is more on the economic system that gave
priority to the extreme collectivism abolish private property, while communism refers to
the political system also prioritizes communal rights, not rights-civil and political rights
of individuals. Ideology is confronted with capitalist ideology-liberalism which
emphasizes individualism both in terms of political and economic.
Both of these ideologies became the main ideology of the countries of the world post-
World War II until the end of the cold war era. Nevertheless both communism and
capitalism have different colors in its application in each region. Ideology is always
adjusting to the field experience of a nation and society. Soviet communism is different
from communism in Yugoslavia, China, North Korea, and several Latin American
countries. Similarly, the difference between capitalism that has developed in Western
Europe, the United States, and Asia.
Although countries that adhere to the ideology scale face to face, but the adjustment
process between the two ideologies can not be avoided. Capitalism, in its development
absorbs the elements of socialism. After experiencing a major crisis in the 1920's (the
great depression) the United States are adopting policies of state intervention in the
economy to improve the welfare of the people. These policies are then developed into the
concept of a separate state, and some even call it ideology, the welfare state (welfare
state) is different from the ideology of classical capitalism.
On the other hand, some communist countries initially very closed gradually opening up,
especially in the form of recognition of civil rights and politics. The democratization
process was gradual until the collapse of the communist countries are characterized by
scattered-berainya Soviet Union and Yugoslavia in the decade of the 1990s.
It has been suggested that the collapse of the Soviet Union and Yugoslavia as the main
pillar is the sign of the defeat of communism deal with capitalism. Even Fukuyama had
argued this as the end of this long history is the stage of the conflict between these two
ideologies. However, this conclusion seems too premature. The collapse of communism,
not capitalism dikatakatan as a victory for two reasons, namely (a) the ideas of
communism, and capitalism is never dead, and (b) the current ideology of capitalism has
absorbed elements of socialism and communism.
The ideas of communism still alive, and it needs to be studied as a means to criticize the
social system and policies are developed. These ideas can also be a movement back to
life if the capitalism which now began to back toward the libertarian is the point of
causing extreme social crisis. Similarly, democratization movements and the struggle for
the rights of the individual will appear on systems that are too accentuate communalism.
Ideology and the Constitution: The ideology of Pancasila as the Open
According to Brian Thompson, a simple question: what is a constitution can be answered
that "... a constitution is a document contains the rules for the which the the operation of
an organization". Referred to various forms of organization and complexity of its
structure. State as one form of organization, in general, always have a script that called
the Constitution or the Constitution. Only Britain and Israel have hitherto not known to
have written a script called the Constitution. Constitution in the two countries was never
made, but grow into the constitution in the practice of administrative experience. But
experts still can be called a constitution in the context of British constitutional law.
Enactment of a constitution as fundamental law binding based on the supreme power or
sovereignty principles adopted in the country. If a country adopts the sovereignty of the
people, then it is the source of the constitutional legitimacy of the people. If the force is
understood the sovereignty of the king, the king who determines whether or not a valid
constitution. This is what is called by experts as a Constituent power is the authority
which is beyond and above as well as the system being regulated. Therefore, in the
democracies, the people who are considered to determine validity of a constitution.
Constituent power ahead of the constitution, and the constitution ahead of the governed
and the government organ established under the constitution. Definition of Constituent
power also related to understanding the legal hierarchy (hierarchy of law). The
Constitution is a higher law or even the highest and most fundamental nature, since the
constitution itself is a source of legitimacy or authorization forms the basis of law or
regulations of other laws. In accordance with the principle of universal law, then in order
to level the regulations under the Constitution can be valid and enforced, the regulations
must not conflict with the higher law.
The Constitution is always related to the understanding of constitutionalism. Walton H.
Hamilton stated "Constitutionalism is the name given to the trust the which men repose in
the power of words engrossed on parchment to keep a government in order". For the
purpose to keep a government in order that necessary arrangements are such that the
dynamics of power in the governance process can be restricted and controlled properly.
The idea of regulating and limiting the power they naturally arise because of the need to
respond to the development of the relative roles of public power in human life.
Constitutionalism in an age now regarded as a concept is necessary for every modern
country. As stated by C.J. Friedrich, as quoted above, "constitutionalism is an
institutionalized system of effective, regularized restraints upon governmental action".
Principal base is general agreement or consent (consensus) among the majority of the
building with respect to an idealized state. State organization that is required by the
political community that their interests can be protected or promoted together through the
establishment and use of a mechanism called the state. The key word is consensus or
general agreement. If the general consensus is collapsing, the collapse is also the
legitimacy of the country concerned, and in turn the civil war (civil war) or a revolution
can occur. This is for instance, reflected in three major events in human history, the
important revolution that occurred in France in 1789, in the United States in 1776, and in
Russia in 1917, or major events in Indonesia in 1945, 1965 and 1998.
Consensus that ensures the establishment of constitutionalism in modern times is
generally understood to rely on three elements of the agreement (consensus), namely:
A. Agreement on the purpose or goal together (the general goals of society or the general
acceptance of the same philosophy of government).
2. Agreement on the rule of law as the foundation of government or state administration
(the basis of government).
3. Agreement on the form of institutions and administrative procedures (the form of
institutions and procedures).
Agreement (consensus) first, which is related to our goals is to determine the enforcement
of the constitution and constitutionalism in the country. Because of our goals at the top of
the abstraction that is most likely to reflect the commonalities of interest among fellow
citizens who in fact have to live in the midst of pluralism or diversity. Therefore, in a
society to ensure unity within the framework of national life, required the formulation of
goals or ideals with which is often called the philosophy of state or staatsidee (ideal
state), which serves as filosofische grondslag and common platforms or kalimatun sawa
among his fellow citizens in the context of statehood.
In Indonesia, the philosophical foundations which meant that the ordinary meaning
referred to as the five principles of Pancasila, or five basic principles to achieve or realize
the four-state destination. The five principles of Pancasila fundamental precepts or
principles that include (i) Belief in God Almighty, (ii) just and civilized humanity; (iii)
the unity of Indonesia; (iv) Democracy Led by Wisdom in the Consultative /
Representative, and (v) social justice for all people of Indonesia. These five precepts are
used as a philosophical-ideological basis to achieve the four goals or ideals as a state,
namely: (i) protect the whole Indonesian nation and the entire homeland of Indonesia, (ii)
promoting the general welfare, (ii) the intellectual life of the nation; and (iv) participate
in the establishment of a world order based on freedom, lasting peace and social justice.
The second agreement is an agreement that the basis of government based on rule of law
and constitution. The second consensus was also highly principled, because in every
country there should be a shared belief that anything is going to be done in the context of
the state organization should be based on the rule of the game are determined jointly. The
term used for it is the rule of law that was pioneered by AV Dicey, a renowned British
scholar. Even in the United States developed a jargon term, that is the Rule of Law, and
not of Man to illustrate the notion that the law which actually govern or lead in a country,
not a human being or person.
The term Rule of Law is clearly different from the terms of the Rule by Law. In this last
term, the position of the law (law) just described are instrumentalists or tools, while the
leadership remains in the hands of people or men, the Man by The Rule of Law. In that
sense, the law can be viewed as a unified system that at its peak there is an understanding
of the basic law which is nothing but the constitution, both in terms of a written text or in
the sense of not writing. From this we know the existence of state constitutional term,
which is one important feature of modern democracies. Therefore, the agreement on the
rules of the system is very important that the constitution itself can hold onto the highest
in all things that should be decided based on the law. Without such consensus, the
constitution would not be useful, because it would merely serve as a paper document is
dead, only the semantic value and do not work or can not function properly.
The third agreement is with respect to (a) building state organs and procedures governing
authority, (b) the relations between the state organs to each other, and (c) the relationship
between the organs of the state's citizens. With the deal, then the contents of the
constitution could be easily defined because it really reflects the common desire with
respect to state institutions and administrative mechanisms to be developed within the
framework of country life berkonstitusi (constitutional state). Agreements that are
formulated in the constitutional document that is expected to hold on together for a long
period of time. The designers and framers of the constitution should not be imagined,
even a draft constitution that would often be changed in the near future. The Constitution
is not the same as the law can be more easily changed. That's why the mechanism of
change in the Constitution is as it should not be changed as easy as changing the law. Of
course, no easy mechanism of constitutional change should not cause the constitution to
be too rigid because it can not be changed. The Constitution also should not be
sanctioned from the possibility of such changes occurring in the New Order.
The existence of a state philosophy of Pancasila as or staatsidee (ideal state), which
serves as filosofische grondslag and common platforms or kalimatun sawa among fellow
citizens in the context of national life in the first deal of constitutionalism buffer indicates
the nature of Pancasila as an ideology is open. Pancasila as an ideology of open
terminology actually been developed in the new order. But in practice at that time further
demonstrate the ideology of Pancasila as closed. Pancasila became a tool of hegemony is
a priori determined by the power elite to curb freedoms and legitimate power. Pancasila
truth when it not only includes the ideals and basic values, but also includes practical
operational policies that can not be questioned, but it must be accepted and respected by
Consequences of the ideology of Pancasila as open space to form an agreement is to open
people how to achieve the ideals and basic values. The deal is a deal on the second and
third as a buffer of constitutionalism, namely the agreement on the rule of law as the
foundation of government or state administration (the basis of government) and the
Agreement on the form of institutions and administrative procedures (the form of
institutions and procedures) . Agreements are only possible if the system being developed
is a system of democracy.
Ideology of Pancasila as the Indonesian nation has differences with the system-liberal
capitalism and socialism-communism. Pancasila recognizes and protects both individual
rights and the rights of both communities in the economic and political. Thus we
recognize in harmony ideology both collectivism and individualism. Developed
democracies, rather than as mere political democracy in the liberal-capitalist ideology,
but also the economic democracy. In the basic economic system of liberal capitalism
rather than joint ventures and family, but to seek individual freedom. While the system
etatisme, who dominated the country's economy, not citizens either as individuals or
together with other citizens.
Pancasila After the 1945 Amendments
Change the 1945 Constitution as the main agenda of the reform era began in the People's
Consultative Assembly (MPR) in 1999. In the MPR Annual Session 1999, all factions in
the Assembly made an agreement about the direction of change in the 1945 Constitution,
A. agreed to not change the 1945 Constitution;
2. agreed to maintain the shape of the Unitary Republic of Indonesia;
3. agreed to maintain the presidential system (in the sense that once perfected truly meet
the general characteristics of a presidential system);
4. agreed to move things that exist in a normative explanation of the 1945 Constitution to
the articles of the 1945 Constitution; and
5. agreed to take in the way of an addendum to amend the 1945 Constitution.
The 1945 changes to be gradual and later became one of the agenda of the Annual
Session of the Assembly from 1999 to the fourth change in the 2002 MPR Annual
Session of the agreement along with the establishment of a Constitutional Commission
tasked with doing a comprehensive assessment of the 1945 change by Legislative Act
No.. I/MPR/2002 on the Establishment of the Constitutional Commission.
The first change made in the MPR Annual Session of 1999 that the direction is to limit
presidential powers and strengthen the position of the House of Representatives (DPR) as
the legislature. The changes made in the annual session of the Assembly of 2000
covering problem areas of the country and the division of local government, first in terms
of perfecting changes to strengthen the position of the House of Representatives, and the
detailed provisions on human rights. Changes specified in the Third Annual Session of
the Assembly of 2001 includes provisions on the basis principles state, state institutions
and relations between state institutions, and the provisions on the General Election.
The fourth change made in the MPR Annual Session of 2002. Material changes to the
Fourth Amendment is a provision of the institutional relations between the state and state
institutions, the abolition of the Supreme Advisory Council (DPA), the provision of
education and culture, the provision of economic and social welfare, and the transition
rules and additional rules.
The changes mentioned above covers almost the entire matter of the 1945 Constitution. If
the original manuscript of the 1945 Constitution contains the provisions of item 71, then
after four times changed, the substance of the 1945 provision includes 199 items.
However, in accordance with the agreement of the Assembly became the Legislative Act
No. of attachments. IX/MPR/1999, 1945 Constitution will not be changed. Opening of
the 1945 Constitution contains a common goal as the peak of abstraction that reflects the
commonalities of interest among fellow citizens who in fact have to live in the midst of
pluralism or diversity. Opening of the 1945 Constitution also includes the goals or ideals
with which is often called the philosophy of state or staatsidee (ideal state), which serves
as filosofische grondslag and common platforms or kalimatun sawa among fellow
citizens in the context of statehood. This is by William G. Andrews called the agreement
Pancasila as the philosophical foundations contained in the Preamble of the 1945
Constitution which is the first agreement buffer constitutionalism. By not turning the
1945 Constitution, it does not change the position of Pancasila as well as building the
philosophical foundations of the Republic of Indonesia. What's changed is the systems
and institutions to realize the ideals based on the values of Pancasila. This is consistent
with the meaning of Pancasila as an ideology that can only be carried out openly in a
democratic system and in contact with the values and the development of society.
Pancasila as the Constitution Matter
Have been described that the life of the nation of Indonesia, Pancasila is filosofische
grondslag and common platforms or kalimatun sawa. Pancasila is the basis of the state.
The next question is how the position of Pancasila in the national legal system?
One of the problems in the past that resulted in Pancasila tend to be used as a tool of
power and more legitimacy to an ideology is closed because of the opinion that the
Pancasila is above and beyond the constitution. Pancasila is referred to as the
fundamental norm of the state (Staatsfundamentalnorm) by using the theory of Hans
Kelsen and Hans Nawiasky.
Hans Kelsen theory that gets a lot of attention is the hierarchy of legal norms and the
validity of the chains that make up the legal pyramid (stufentheorie). One of the leaders
who developed the theory was a student of Hans Kelsen, namely Hans Nawiasky.
Nawiaky theory called Theorie von der rechtsordnung stufenufbau. The composition
according to the norms of the theory are:
A. Fundamental norm of the state (Staatsfundamentalnorm);
2. The basic rule states (staatsgrundgesetz);
3. Formal legislation (formell gesetz), and
4. Implementation rules and regulations of autonomous (verordnung en autonome
Staatsfundamentalnorm is a norm which is the basis of a constitution or Basic Law
(staatsverfassung) of a country. Legal position of a Staatsfundamentalnorm is a
requirement for the validity of a constitution. Staatsfundamentalnorm is before the
constitution of a country.
According Nawiasky, the highest norms by Kelsen called the basic norms (basic norm) in
a country should not be referred to as a rather staatsgrundnorm Staatsfundamentalnorm,
or the fundamental norms of the country. Grundnorm essentially unchanging, while the
highest norm change for example by way of a coup or revolution.
Based on the theory Nawiaky, A. Hamid S. Attamimi comparing Kelsen theory and apply
it to the structure of the governing law in Indonesia. Attamimi shows hierarchical
structure of the Indonesian legal system by using the theory Nawiasky. Based on this
theory, the legal structure of Indonesia is:
1) Staatsfundamentalnorm: Pancasila (opening 1945).
2) Staatsgrundgesetz: the body of the 1945 MPR, and the constitutional convention.
3) Formell gesetz: Act.
4) Verordnung en Autonome Satzung: In hierarchical ranging from government
regulation to Decision regent or mayor.
Placement of Pancasila as Staatsfundamental-norm was first advanced by Notonagoro.
Pancasila is seen as ideal law (Rechtsidee) is the guiding star. This position requires the
formation of positive law is to achieve the ideas in Pancasila, and can be used to test the
positive law. With the enactment of Pancasila as Staatsfundamentalnorm the legal
establishment, implementation, and implementation can not be separated from the values
However, the placement of Pancasila as the Staats-fundamentalnorm means placing it in
the Constitution. If so, Pancasila is not included in the constitutional sense, because it is
above the constitution. To discuss this issue can be done by tracing back the basic norms
and conceptions of the constitution according to Kelsen and development made by
Nawiasky, and looked at the relationship between Pancasila and 1945 Constitution.
Kelsen discusses the validity of legal norms by describing it as a chain that led to the
constitutional validity of the state. If asked why the constitution is valid, it may be
pointing to the old constitution. Eventually reach a constitution first constitution set up by
individuals or some sort of assembly. The first is the constitutional validity of the last
presuppositions, postulates the final, where the validity of all norms in the order of the
rule of law depends. Document which is a form of constitution is the first real
constitution, a binding norm, only on the condition dipresuposisikan as valid.
Presupposition is called the term-logical trancendental pressuposition.
All legal norms are the property of the same legal regulations as its validity can be traced
back, directly or indirectly, to the first constitution. That the first constitution is a binding
legal norm is something that dipreposisikan, and formulation of these propositions is the
basic norms of the legal rules governing it.
The last sentence clearly indicates two things: the basic norm is a presupposition for the
validity of the first constitution. The basic norm is not made in legal proceedings by the
law making organs. This norm is not valid because it is made by way of legal action, but
valid because dipresuposisikan valid, and dipresuposisikan valid because without this
presupposition no human act can be construed as legal norms in particular law-making.
Kelsen logic is often misunderstood by mixing between the presupposition and the
validity of the constitution, which is a basic norm (grundnorm)?. It was then resolved by
Nawiasky to distinguish between staatsfundamental-norm with staatsgrundgesetz or
grundnorm on the grounds that grundnorm essentially unchanged while
staatsfundamentalnorm may change as a coup or revolution.
Nawiasky opinion is actually in line with the view of Kelsen. Kelsen also stated that the
constitution made it difficult to change because then becomes different from the usual
norms. In addition, Kelsen also provides that a rule of law loses its validity as a whole in
the event of a coup or revolution effective. Coup or revolution is a change of law other
than as specified by the rule of law itself. Coup or revolution is a fact of the loss of the
first constitutional validity of the presuppositions and replaced with other
presuppositions. Tata law is a new legal order even with the same material with the old
Based on the description of the views and Nawiasky Kelsen can be concluded that the
Staats-fundamentalnorm raised by the constitutional validity of the presuppositions
nawiasky was first put forward by Kelsen as the basic norm. While his Staats-
grundgesetz Nawiasky is constitutional in view of Kelsen. The next question is whether
the Pancasila is staatsfundamentalnorm or being part of the constitution?
Pancasila was born and formulated in the trial Investigation Agency Business Preparation
of Indonesian Independence (BPUPKI) when discussing the basis of the country,
especially in Sukarno's speech on June 1, 1945. Soekarno called basic state as
Philosofische grondslag as foundations, philosophy, deep thinking that the building will
be erected above the country of Indonesia. Sukarno also have called Weltanschauung or
worldview. Pancasila is five or five basic principles.
Sukarno's speech presented at the time was a series of trials that address the basic state
BPUPKI. Apart from Soekarno, the other members also expressed their opinions both
orally and in writing. Of the various opinions expressed in the trial, was later appointed
the drafting team consisting of eight persons, namely: Ir. Sukarno, Drs. M. Hatta, Mr. M.
Yamin, M. Soetardjo Kartohadikoesoemo, R. Otto Iskandardinata, Mr. A. Maramis, Ki
Bagoes Hadikoesoemo, and K.H. Wachid Hasjim. The team produced a formula that
became known as the Jakarta Charter and accepted by BPUPKI on July 10, 1945. This
document is the 1945 Constitution after a compromise with the deletion of seven words.
Although Sukarno considerable influence in the formulation of this document, but this
document is the result BPUPKI formulation which itself represents a variety of thought
BPUPKI members. This document contains five basic states in addition to that proposed
by Sukarno, also includes the basic ideas of others.
If the basic problem mentioned by Soekarno as Philosofische grondslag or
Weltanschauung, then the outcome of these proceedings, namely the Jakarta Charter,
hereinafter to be referred to the Preamble and the 1945 Constitution, which is the nation's
Weltanschauung Philosofische grondslag and Indonesia. All the values and principles in
the Preamble of the 1945 Constitution is the foundation of Indonesia, including the
In addition to Pancasila, has been widely known for the opening of the four main ideas of
the 1945 Constitution, namely: (1) that the State of Indonesia is a country that protects
and covers the whole Indonesian nation and the entire homeland of Indonesia, as well as
covering all know and understand the individual groups, (2) that Indonesia country about
social justice for all citizens, (3) that the State adopts the sovereignty of the people of
Indonesia. State was formed and organized under popular sovereignty, and (4) that the
State of Indonesia is a country that air-Belief in God Almighty on the basis of a just and
If you look at the 1945 opening, each containing Alenia too lofty ideals and philosophical
to be animating the whole system of thought content of the Constitution. Alenia
Indonesia's first confirmed the belief that freedom is a birthright of all nations, and
therefore all forms of colonialism in the world should be abolished because it does not
comply with humanity and justice. Alenia both describe the process of Indonesia's long
struggle and suffering that finally managed to deliver the nation of Indonesia to the gates
of Indonesia's state-independent, united, sovereign, just and prosperous. The third Alenia
confirms the recognition of Indonesia will power the Supreme Almighty God, who gives
spiritual boost to the whole nation to fight for the realization of the ideals of virtuous so
that the people of Indonesia declared its independence. Alenia last four describe
Indonesia's vision of building the nation state is to be formed and organized in order to
institutionalize the ideals of the whole nation to an independent, united, sovereign, just
and prosperous in the container country of Indonesia. Alenia is in the four mentioned
goals of state and country basis.
Overall the 1945 Constitution contains background independence, world view, goal state,
and country basis in the form of basic ideas such as has been described in language that
was referred to as Philosofische grondslag Sukarno or the basis of the state in general.
Apparent that the preamble of the 1945 Constitution as the ideology of the nation not
only contains the Pancasila. In political science, the 1945 Constitution may be cited as the
ideology of the Indonesian nation.
The next question, whether the 1945 Constitution is staatsfundamentalnorm in Indonesia?
If the Staats-fundamentalnorm the 1945 Constitution is a separate part of the articles of
the 1945 Constitution because the 1945 Constitution staatsfundamentalnorm a norm
which is the basis of a constitution or Basic Law (staatsverfassung), or in Kelsen 1945
Constitution is mempresuposisikan validity of the 1945 Constitution.
Explanation of the 1945 Constitution, which is part of the whole of the 1945 Constitution
states that "the Principles of the mind include mystical atmosphere of the Constitution of
the State of Indonesia. These basic ideas embody the ideals of the law (Rechtsidee) which
controls the basic law of the state, either the written law (constitution) or unwritten law.
Constitution created the basic ideas in its articles ". Even the founding fathers also aware
of the development community so do not rush to give crystallization, giving form
(Gelstaltung). This explanation of the changes actually make room for the realization of
basic ideas in the Preamble of the 1945 Constitution.
Based on these explanations, it appears that the 1945 opening of a union with the
provisions of the 1945 Constitution. It can also be seen from the process of drafting the
1945 Constitution is an integral part of the discussion of other issues in the Constitution
by BPUPKI, the problem state form, the state, people's representative bodies, and
advisory bodies. Status of the 1945 Constitution as a whole with its articles to be very
firm in accordance with Article II of the Supplement to the 1945 Constitution which
reads: "With the enactment of amendments to this Constitution, the Constitution of the
Republic of Indonesia Year 1945 consists of the preamble and the articles . "
If the opening of the 1945 Constitution and its articles is a unified whole, certainly can
not separate them by placing the opening of the 1945 Constitution as a higher
staatsfundamentalnorms of its articles as staatsverfassung. Moreover, by stating that the
1945 Constitution is the basis for the establishment clauses of the 1945 Constitution as a
constitution, or the opening of the 1945 Constitution is the presupposition for the validity
of the articles of the 1945 Constitution. The opening of the 1945 Constitution (including
the Pancasila) and its articles are written constitution of Indonesia. Opening of the 1945
Constitution, although the basic ideas of high abstraction and set out in its articles, but
not the validity of the basic articles of the 1945 Constitution and the means nor the
validity of the presuppositions these articles. Opening of the 1945 Constitution is not just
a postulate of the juristic-thinking. Overall the 1945 set as the constitution
(staatsverfassung) binding in a legal action, namely PPKI decision dated August 18,
The opening of the 1945 placement as part of the Constitution as well as placing it as an
abstract norm that can be used as a standard of constitutionality of legal norms valuations
lower. Even be used as a guiding principle in interpreting the constitution. With the 1945
opening of the position as part of the constitution, the basic ideas contained in it,
including Pancasila, can actually be Rechtsidee in the development of the Indonesian
If Pancasila is not a staatsfundamental-norms, then what is the basic validity of the 1945
Constitution as a constitution? What mempresuposisikan validity of the 1945
Constitution? Proclamation of August 17, 1945. Proclamation by the law in effect at that
time is not a legal action because it is done not by the organs of law and not in
accordance with legal procedures. Proclamation of August 17, 1945 which marked the
founding of the Republic of Indonesia, which means the formation of a new legal order
(New Legal Order). The existence of the State of Indonesia after the proclamation is a
postulate of judicial thinking (juristic thinking) as the basis for a constitutional validity of
the 1945 State of Indonesia. The existence of an independent state of Indonesia which is
the presupposition that the validity of the Indonesian legal system is based on the 1945
order as well as abolish the old law as a system.
Role of the Constitutional Court
Hans Kelsen stated that the implementation of the constitutional rules of the legislation
can be effectively guaranteed only if an organ other than the legislature is given the task
to test whether a product is or is not constitutional law, and is not allowed if the organ is
the product according to the law was unconstitutional. For that particular organ can be
held as a special court called the constitutional court (constitutional court), or control of
the constitutionality of the law (judicial review) was given to the ordinary courts,
especially the supreme court. Specialized organ that controls can eliminate a whole
statute unconstitutional so it does not apply to other organs. Meanwhile, if an ordinary
courts have competence to test the constitutionality of legislation, perhaps only in the
form of refusing to apply them in concrete cases when stating that the law was
unconstitutional, while other organs remain obligated to enforce them.
George Jellinek at the end of the 19th century developed the idea that the authority of
judicial review have been implemented in Austria, as it has been applied by John
Marshall in the United States. In 1867, the Austrian Supreme Court deal with the dispute
judicially obtain authority relating to the protection of political rights against the
government. Kelsen thought that has been disclosed above, encourage the establishment
of an institution that is named Verfassungsgerichtshoft or the Constitutional Court
(Constitutional Court), which stands alone outside the Supreme Court, so the model is
often referred to as "The Kelsenian Model". The idea was put forward when Kelsen was
appointed as a member institution of the Constitutional reformers Austria (Chancelery) in
the year 1919 to 1920 and received in the Constitution in 1920. This is the world's first
Constitutional Court. This model involves the relationship between the principle of
supremacy of the Constitution (the principle of the supremacy of the Constitution) and
the principle of supremacy of parliament (the principle of the supremacy of the
Parliament). Constitutional court is to test both the norms that are abstract (abstract
review) and also allows the testing of the standard concrete (concrete review). Testing is
usually carried out a posteriori, although not ruled out a priori testing.
However, the existence of institutions in general Constitutional Court is a new
phenomenon in the world of nations. Until now there are 78 new countries that make up
this court separately. These countries are generally countries that experienced a change
from authoritarian to democratic states.
In Indonesia, the Constitutional Court is a product of changes in the 1945 fourth. Article
24 paragraph (2) of the 1945 Constitution states: "The judicial power shall be exercised
by a Supreme Court and judicial bodies underneath it in the general courts, religious
courts, military courts, administrative courts, and by a Constitutional Court" . This means
that branch of judicial power is an integrated system made by the Supreme Court and the
Constitutional Court which reflects the peak of Indonesia's sovereignty under the 1945
law in August 2003. The Constitutional Court of the Republic of Indonesia and regulated
by Law Number 24 Year 2003 concerning Constitutional Court promulgated on August
13, 2003. But the new institution of the Constitutional Court itself is completely formed
on August 17, 2003 after the oath of office constitution the nine judges on August 16,
Indonesian Constitutional Court the authority to hear at the first and last decision is final
for (a) test the laws against the 1945 Constitution, (b) rule on the dispute the authority of
state institutions whose authorities are granted by the 1945 Constitution; (c) decisions on
the dissolution of political parties and (d) to decide disputes concerning election results.
Besides also the Constitutional Court (e) shall give a decision on the opinion of the
House of Representatives that the President and / or Vice President is alleged to have
violated the law in an act of treason, corruption, bribery, other felonies, or moral
turpitude, and / or no longer meets terms as President and / or the Vice President as set
forth in the 1945 Constitution.
The authority's first Constitutional Court is often referred to as judicial review. However,
this term should be straightened out and replaced with the term constitutional review or
constitutional test given that the authority of the Constitutional Court is to examine the
Act to the 1945 Constitution. Per definition, the concept of constitutional review is the
development of modern ideas about the democratic system of government based on the
idea that the state law (rule of law), the principle of separation of powers (separation of
power), as well as the protection of human rights (the protection of fundamental rights).
In the system of constitutional review that included two main tasks, namely (a) ensure the
proper functioning of the democratic system in relation to the role or interplay between
the branches of the executive, legislative, and judicial branches, and (b) protect individual
citizens from abuse of power by the state agency that harm their fundamental rights
guaranteed in the constitution.
While the authority of the Constitutional Court, can be viewed as an effort to reorganize
the state of institutional relations and democratic institutions based on the principle of
rule of law. Prior to the formation of the Constitutional Court with such authority, state
and institutional relations more democratic institutions based on political connections. As
a result, an institution may dominate or co-opt other institutions, or disagreement between
the agency or institution that gave birth to a constitutional crisis. This raises the lack of
legal certainty and kotraproduktif to the development of cultural democracy. State
regulation of political life in general has also grown as a form of "the
constitutionalization of democratic politics". It is merely to realize the rule of law, legal
certainty, and the development of democracy itself, based on the concept of a democratic
constitutional state (democratische reshtsstaat).
Testing authority legislation against the Constitution is the authority of the Constitutional
Court as the guardian of the constitution (the guardian of the constitution). The authority
was implemented to maintain the provisions of law so as not to conflict with or
detrimental to the 1945 Constitution and the constitutional rights of citizens. Touchstone
of course used is the 1945 Constitution which consists of the preamble and Articles. Is
used as a tool to test whether a statutory provision violates the constitutional rights or
conflict with the Constitution not only the Articles, but also the ideals and principles
contained in the Preamble of the 1945 Constitution.
In the exercise of the authority of the Constitutional Court, a fundamental new problems
constantly arise in the process of structuring the basic state of life associated with the
Pancasila state and development of a world dominated by the ideology of capitalism.
Those issues include: (a) economic relations with the law and politics; (b) the
institutional framework, (c) the purpose and role of government; (d) the consequences
and limits of state intervention in society, and (e) the issue of state sovereignty against
with the development of international law.
Decisions Act test against the 1945 Constitution have been made by the Constitutional
Court against a variety of proposed petition also always in full view of the 1945
Constitution. In those rulings contain these terms and concepts related to the
understanding of a provision in the constitution is based on state goals (staatside) and the
philosophical (filosofische grondslag) of Indonesia. Until now there have been various
decisions of the Constitutional Court in political, economic, social and related provisions
of the 1945 Constitution which elaborates on the basic values of Pancasila as the
touchstone for application testing legislation against the Constitution.
Constitutional Court as the guardian of the constitution is automatically also meant as a
guard Pancasila as the material constitution and defend it as an open ideology. Court
elaborated on the values and basic principles of Pancasila to determine whether a
statutory provision against the constitution or not. In addition, through the exercise of its
authority, the Constitutional Court while maintaining the Pancasila as an ideology is
always open to considering the development of values in society and the international
community so as not to be a closed ideology that can be misused as a mere instrument of
power legitimacy. It can also be done in the exercise of authority to another, especially in
terms of authority dispute of state institutions, the dissolution of political parties, and
decide on the proposal and the House of Representatives to impeach the President or Vice
State ideals apply to all the people of Indonesia without distinguishing between men and
women. It is a pleasure for the progress of Indonesia compared to some other country's
constitution, even in America and France, which was originally only mention the word
"man" as a citizen. One of the precepts of Pancasila is "just and civilized humanity." This
suggests that one of the nation Indonesia is supporting humanitarian principles of justice,
which in itself is good against discrimination based on race, religion, political belief, or
The basic principles can also be seen from the formulation of the provisions of Chapter
XA of the 1945 Constitution on Human Rights. The whole issue of human rights
provisions in the 1945 Constitution states "every person" or "any citizen" who show no
distinction based on gender. Even in Article 28 of the 1945 Constitution stated "Everyone
is entitled to be free from discriminatory treatment on any ground and are entitled to
protection against the discriminatory treatment".
Although there has been a constitutional guarantee, but reality shows that gender
discrimination is still prevalent in society. This is not apart of the stereotypes and the
dominant culture patriakhi not only in Indonesia, but also around the world. Even at the
regional countries of Asia and Latin America have certainly led by women, European
countries are still rare, even in America has never been at all.
Faced with the reality of the persistence of discrimination against women both culturally
and structurally, is an injustice if you just give equal opportunities to women and men to
participate in various areas of life. Women obviously would remain because of the ability
and social support gained less than the men who from the beginning is dominant.
Because that is legitimate and sense of fairness if there is a policy that seeks to promote
the role of women by providing special quotas (affirmative action). It is constitutionally
guaranteed in Article 28H paragraph (2) of the 1945 Constitution which states "Every
person is entitled to special treatment facilities and to obtain the same opportunities and
benefits for achieving equality and justice."
One form of affirmative action is a joint agreement between Parliament and government
of the quota of at least 30 percent of legislative candidates, both central and regional
levels, proposed by political parties participating in the Elections 2004. It's just
unfortunate formulation of regulations on it, namely Article 65 paragraph (1) of Law
Number 12 Year 2003 regarding General Elections for the DPR, DPD, and the
parliament, not coercive (imperative) for using the word "may" instead of the word
"shall" or "should". As a result, members of the legislature, both at central and regional
levels, the results of the 2004 election did not meet the 30 percent representation of
Apart from the guarantee of equal rights and facilities and special treatment in the 1945
Constitution, which determines whether or not recognized equality of women and men as
well as the role of women in public life or not, nation and state, is a human quality. Even
if given special treatment and social cultures are not gender bias, but if you do not have
adequate quality, women will not be able to take advantage of the special treatment
given. The policy will also lead to decorate the lips alone.
Then increasing the quality and capabilities of women should be the nation's agenda as a
whole, as well as political parties, in addition to the structural and cultural struggle. This
can be done by any process of education and training and expand the activities of field
experience in the life of society, nation and state.
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