Finding Development Contitutional Law After Amendment : From History, Concept and It’s Implementation
Finding Development Contitutional Law After Amendment : From History, Concept and It’s Implementation
Book Title: Restoration of Indonesian Constitutional Law Based on the 1945 Constitution of the Republic of Indonesia
Author: Prof. Dr. Titik Triwulan Tutik, S.H., M.H.
Expert Editors: Prof. Dr. Nunuk Nuswardani, S.H., M.H
Publisher: Prenadamedia Group ISBN 97860242224444
xiv 1186
When I saw and held this book, my mind immediately turned to the treatises of the 1945 Constitution, whether it was published by the MKRI or the MPR with several series, which were also very thick. With the sum of 1186 plus xiv, measured with a ruler about 7.6 cm thick. With such a display, the reader must have extra time and focus to finish it, but I believe it will not be boring, at least enjoyed with coffee and snacks.
From the title, Restoration of Indonesian Constitutional Law, which is then given the subtitle Based on the 1945 Constitution of the Republic of Indonesia, I can immediately suspect that this is a “complete edition” of how our constitutional construction is according to the 1945 Constitution of the Republic of Indonesia. “Complete pharmacy”, then the contents are so complete and comprehensive, that when I opened the table of contents, I was right in my guess that this was the complete version of the 1945 Constitution. The author clearly states in the introduction to the second paragraph that the historical aspect is the foothold in the writing of this book, precisely how the debate is in the amendments to the 1945 Constitution. Then the list of contents is in accordance with the systematicism of the 1945 NRI Constitution. If then this is actually the 1945 NRI Constitution, what is it for? a book this thick was written, isn’t it enough to read the Constitution?
This is what the author produces. Whereas reading the text of the 1945 Constitution without context, you will not know the direction of “why this article was born” and why it should be deleted, amended and replaced by a new one and what underlies these changes, both philosophical, theoretical and political aspects. Because of that, the thickness of this book is because it “guides” every main issue in the 1945 Constitution, starting from the questions “Form and Sovereignty of the Indonesian State” to “Legal Position of Transitional Rules” and “Additional Rules”. How was this guide provided by the author? At first I thought this guide would be like the minutes of the 1945 Constitution drafting session by the MPR. In fact, my guess was wrong. Where is my guess wrong?
Before I describe that, I would like to invite all of us to look at the essential things discussed in this book, namely the constitution. The definition of a constitution can be found in various literatures. I would like to conclude that the constitution is firstly, the constitution is seen formally as a document that is so named because there are certain qualifications related to its position and character. In this formal category, documents that are not referred to as constitution / constitution / UUD / Grodwet / Grundgesetz as official nomenclature, but have a position and character like a constitution, are included in the constitution. Second, the content of the constitution is basically about institutions, namely the allocation of power, processes and relations between powers, which in the political approach produces a ‘power map’ or organizational chat, which in the legal approach can be called an organization of authority. Apart from power, the content of the constitution as a political manifesto is a reflection of the political experience of the state and on political experience the goals of the state are also determined. This is explicitly stated in the preamble of the constitution. In this context, it is necessary to emphasize that a constitution can have the significance of marking a break with the past, resolving past conflicts, or strengthening national identity. Third, the constitution in terms of its position in the hierarchical legal system in the national legal system is the supreme law. This view shows a legal approach that makes the constitution the basic law which becomes the source and basis for other legal rules and the constitution creates a hierarchical system of statutory regulations. As a consequence of being the highest law, in the aspect of constitutional formation, it cannot be equated with the formation of other legal rules and judicial bodies cannot make or change laws. However, above these three main points, all agree that the constitution is put in place as a means and function to limit power, which means that it contains the idea of constitutionalism.
My real mistake is that this book not only guides us in understanding the constitution in the three areas of understanding mentioned above, through “presenting the debate on the amendment to the Constitution”, but comprehensively covering the history, concept, and implementation of the 1945 Constitution. This is what I call plenary in guiding we understand the Constitution and measure its implementation.
Regarding history, because every event has a context, this book puts historical aspects in order to help us understand the text and the context in which verses and chapters were formulated. In the framework of its implementation, the author’s explanation regarding how the debate in formulating the Constitution helps in interpretation. According to Mertokusumo and Pitlo, interpretation is a method of legal discovery to provide a clear explanation of the text of the law so that a rule can be established in connection with certain events. Interpretation by the judge is an explanation used for the implementation of something that is acceptable to the public regarding the rule of law regarding concrete events. Thus, this interpretation is a means or means of knowing certain meanings in law. Specifically, the interpretation of the constitution revolves around two major views, namely originalism and non-originalism. Originalism is a view that states ‘judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written constitution’. Originalism is also called the interpretivism, or also called the ‘plain meaning’ interpretation. In interpretation with originalism there are two main models, namely original intent and original meaning theory. Original intent is a constitutional interpretation based on what is meant by the compiler or constitution maker, while original meaning theory is an interpretation based on the meaning of the text according to the meaning at the time the text was formulated. In the original intent, there is a “motivational intent” from the compilers of the constitution when the constitution is formulated, whereas in the original meaning, the interpretation of the meaning of the constitution does not enter the realm of the intent or thoughts of the compiler but is based on the meaning of words, terms or phrases, when the constitution is first formulated or implemented. time.
Regarding theories and concepts, this book is very rich in references to all things in the 1945 Constitution, from the issue of sovereignty as the initial chapter to the amendment of the Constitution. We can find that the author of this book references comprehensive publications both nationally, such as Jimly Asshidiqqie, Philipus M. Hadjon, Laica Marzuki, Bagir Manan, Ramlan Surbakti, Saldi Isra, and so on to foreign references such as Arend Lipjhart, Ginsberg, John Ferejohn and so on. . My point is that the author “skinned” every part of the Constitution with very adequate reference support. This means that this book guides the reader to a conceptual understanding of an idea in the 1945 Constitution. In this position, we as readers are also invited to think about exploring a “counter argument” from other references.
Regarding implementation, if I’m not exaggerating, I say this is the largest part of this book. What I speak as implementation is, the author stands on the 1945 Constitution as the center of discussion and then how is it implemented in laws and regulations that are lower than the Constitution and how specifically “regarding institutions” that implement the rules in the Constitution, for example regarding the BPK, KPK, KY and so on. Even so, the intended implementation is not only a matter of the derivation of the Constitution in statutory regulations, the author also complements it with dynamics that come from the Constitutional Court decision. I can say that the writer’s detail in terms of implementation requires “patience” in the inventory and description. Ambul for example, when discussing the rights and obligations of citizens (page 747) as one of the chapters in the Constitution, the author describes the legislation in the field of citizenship, even when discussing the New Chapter in the Constitution, namely CHAPTER XA on Human Rights, it is also described in detail how it is implemented. , such as regarding religious freedom, starting with Regulation Number I / PNPS / 1965 to the matter of blasphemy sanctions. In this implementation aspect, the writer is actually “challenging” us to always be updated with the development of laws and regulations, thus inviting us to follow the dynamics of the constitution at the implementation level, at least in the realm of the derivation of the Constitution through the formation of laws and regulations and the dynamics of implementing the Constitution through sentence
Apart from that, in fact the author is not satisfied with only the historical, theoeretic issues and how the constitution is implemented, so he also adds a “mirror” by presenting the context of comparison. This can be found on page 901 regarding the anti-blasphemy law in various countries.
In the end, the book “guides, lighters” for understanding the 1945 Constitution must be a compulsory reading for law, sharia, and also politics students by placing it as a textbook. But of course more than that, this book can be read by anyone who is curious about the direction this country and nation is managed.
Most recently, it seems that by reading the author’s career in the IAN / UIN environment, this book will be very challenging for counterparts to see state administration based on Islamic studies regarding all matters in the contents of the 1945 Constitution. This is necessary so that we are increasingly flooded with alternative choices in state governance.
Lecturer at the Department of Constitutional Law
Faculty of Law, Universitas Airlangga
Email : radian.salman@fh.unair.ac.id
