Should the Fifth Amendment 1945 THE CONTENTS ( part II )

People's Consultative Assembly (MPR)
If agreed parliamentary or legislative bodies of our two rooms (bicameral) as a new resultante as proposed above, the Assembly can be served as the legislative body (parliament) that the implementation of the types of functions and powers can be distinguished by the quorum in the decision-making mechanisms.
When carrying out the legislative functions of the Assembly a quorum of half plus one in each room (DPR and DPD), accompanied by a mechanism of checks and balances with the President, but at the moment to change the Constitution and impeach the President / Vice President continue to use the quorum present (Cq. Article 7, Article 8, and Article 37). If this idea is approved it should be changed or adjusted, at least, are some articles related to the MPR, DPR, DPD, and the President.

House of Representatives (DPR)
DPR is the people's representative institutions as the political representative bodies whose members are elected from political parties through elections. This institution has a legislative function, monitoring, and budget with the rights of parliament such as the right of questionnaire, the right of interpellation, the right to ask, and so on. If we agree to mnganut common system is bicameral Parliament as one of the rooms in the Assembly as a political perewakilan room adjoining the DPD as a territorial representative rooms with legislative power or to form the Act, at least in certain matters relating to the relationship between Central and Regional and / or the issue of regional autonomy.

President and Vice President
Based on the amendment of the Constitution the President and Vice President elected directly by the people. The idea underlying the position and functions of the President by direct election is to build a pure presidential system of government institutions and legitimated presidency stronger. But it's hard to find size of the 'pure' from the Presidential system is. If for example the United States regarded as a pure system, the system we were not Presiensial pure system in Indonesia because the President has the right along with the House legislation to establish the Act. Though it can be said that the Presidential system in the United States generally followed the legislation does not give rights to the President. In the United States full rights legislation in the hands of the Congress (Parliament) but the President has veto power in the framework of checks and balances. So differences in our presidential system with a presidensisl system 'is considered' pure or general, Indonesian President had the right legislation with the House while in the pure presidential system the President did not come to set the Act but has veto power through the mechanism of checks and balances. Although as a matter of political choice is not wrong, but if you want to follow the presidential system the President should not participate or have the power to set Act legislation.

Potential constitutional crisis and political
One reason for the necessity of the fifth amendment in relation to the position of President / Vice President is the potential for constitutional and political crisis associated with the provision if the President and Vice President remain absent at the same time. As it is known if the president and the vice president remained absent at the same time, for example, because both are subject to impeachment (which led to the dismissal) or die or resign at the same time the contents were arranged in a way in Article 8 paragraph (3). However, Article 8 paragraph (3) of the 1945 Constitution was somewhat problematic because the content is less complete settings. Chapter and verse on this was set but did not anticipate at all if it does not appear candidate pairs until the appointed time.
Article 8 paragraph (3) provides that when the President and the Vice President remains the same absent the triumvirate power by the interior minister, foreign minister and defense minister, but in no later than 30 days after that the Assembly should be convened to select one pair of two couples who filed by political parties or coalition of political parties in presidential elections that have obtained the most votes the first and second. Exactly the article reads:

(3) If the President and Vice President die, quit, dismissed, or is unable to perform his duty in his tenure at the same time, a presidential task was Minister of Foreign Affairs, Minister of Home Affairs, and Minister of Defense together. No later than thirty days after that, the MPR should hold a session to elect the President and Vice President of two pairs of candidates for President and Vice President nominated by a political party or coalition of political parties which pairs candidates for President and Vice President won the most votes the first and second in the previous general election, until the end of his tenure.

The question is, what if until the specified time one or both political parties or coalition of political parties were not entitled to nominate a candidate? MPR certainly can not force a political party or coalition of political parties intended to propose candidates. It may also happen coalition of political parties that had filed pairs President / Vice President who later resigned to no longer together couple's asking for political differences, for example, one of the parties that had joined it was no longer willing to join with no intention to ask the candidate himself.
It should be remembered that it is very possible because of the political calculations of the political party or coalition of political parties entitled to ask prospective partners. One of the political calculation that may be used to not asking the candidate pair is because the balance of the people's choice and the results of the MPR selection is not necessarily the same. Couples who are elected by popular vote in direct elections by the people does not necessarily get the most votes, too, if elected by the Assembly.
Let us simulate the position of President and Vice President Susilo Bambang Yudhoyono and Jusuf Kalla (SBY-JK) today. Suppose SBY-JK dismissed by the Assembly or both of them dies or resigns (resign) simultaneously. In such case then according to Article 8 paragraph (3) the position of President / Vice President is held by a triumvirate (Ministry of Home Affairs, Foreign Minister, and Minister of Defense) and within 30 days after the Assembly convened to choose a replacement candidate pair Presidential and Vice-Presidents of the two pairs proposed by the Democratic Party and the PDI-P and their respective coalition. In such circumstances the Democrats could not nominate a candidate because of the small number of seats in the Assembly are more likely to lose when compared with the PDI-P is sound and the larger network in the Assembly. Maybe even they do not nominate a candidate because of certain political considerations, for example, because time is too short to risk the party's reputation or character which will carried. What if that happened? This was not anticipated by the 1945 change-makers.
Therefore it becomes important to consider the existence of a clear regulation about this. These settings can only be placed in the constitution because the constitution it comes to content that can not be regulated by law. Many alternatives to be sought and can be considered to fill the position of President and Vice President who was unable at the same time. Here are examples of alternatives that can be considered for simulation.
1. If the situation remains incapacitated that was before the expiration of two years of office of the President and Vice President of the respective re-election is held directly by the people to choose one partner from the couple filed by political party or coalition of parties which had the support of at least 35% of the vote results of legislative elections .
2. If the requirements of point 1 it only appears a couple candidates who qualify the Assembly designated it a candidate pair that replaces the President and Vice President who was unable to remain at the same time.
3. If the situation remains incapacitated occurred after the remaining term of less than two years the replacement of the President and Vice President conducted according to the provisions of article 8 paragraph (3).
4. If the requirements as prescribed in Article 8 paragraph (3) appears only one partner is the right candidate for the nomination of the next candidate pair is given respectively to the political party or coalition of parties which won third partner, and so on to the President and Vice President before.
5. If the coalition of political parties which had brought the couple entitled to file a candidate who was not able anymore to ask couples to join in with the candidates of parties that have seats in Parliament in the anatara coalition of political parties are entitled to ask prospective partners as stipulated in the pasxal 8 paragraph (3) .
6. If, based on the requirements of item 4 and still appear only one candidate pair is a pair of MPR set as a replacement candidate and Vice President are unable to continue.
7. If the situation remains incapacitated came after the remaining tenure of the President and Vice President less than six months so the position of President and Vice President held by a triumvirate, as referred to in Article 8 paragraph (3) until the end of his tenure.
Alternative was created to merely provoke and develop ideas to anticipate the political crisis because of hopelessness of the implementation of Article 8 paragraph (3). Various other alternatives can be simulated to eventually look for the right clothes penuangannya law.

Supreme Court (MA)
Position, function, and the Supreme Court's authority as stipulated in the 1945 amendment was the right outcome and in accordance with the desired state administration system. MA is one of the institution of judicial power holders who handle the cases with four conventional judicial environment that is common justice, religious courts, military courts, and state administrative courts. In the field of legislation authorized the Supreme Court to test the laws and regulations under the Act against legislation that higher rank.
But there is no guarantee that a stronger consistency in testing legislation should be under disatuatapkan Court, while some of the Court authority that conventional or general nature (ie dealing with conflicts between people and or institutions) was transferred to the Supreme Court. Thus there is a one-stop handling of conflicts between people and or institutions by MA (general court-conventional) and the handling of conflicts rules through judicial review by the Constitutional Court (judicial ketatangeraan). For that we need an amendment of Article 24, 24A and 24C of the 1945 Constitution.

Constitutional Court (MK)
Constitutional Court (MK) is the institution of judicial power by the Supreme Court specifically dealing with administrative justice. This institution authorized to examine the Law of the Constitution, to decide disputes between state institutions whose authorities are regulated in the Constitution, to decide disputes election results, and decide upon the dissolution of political parties. While the Court is to decide obligation opinion or charges (impeachment) House of Representatives that the President / Vice President has violated certain things in the 1945 Constitution or no longer qualifies as the President / Vice President
It must be admitted the presence of these institutions have contributed much to remedy the constitutional system and our law. Indeed there are times when these institutions get a lot of attention because of several controversial decisions, but is generally used if the court responded to the controversial because the winning feeling of justice, while the losers was treated unfairly.
Related to this Court's existence there was the matter, namely the steps of some of the Constitutional Court verdict which was considered beyond the limits of authority and into the realm of the legislature when its decision is final and binding. In addition, as noted above, the constitutional arrangements of the testing legislation has been slightly confuse the concentration of judicial power in the handling of conflict and conflict of laws and / or institutions.
For the first problem, there are several decisions of the Constitutional Court which is ultra petita (not required) that leads to the interventions in the field of legislation; there is also a decision that violates the principle of nemo judex in causa sua (prohibition decide matters pertaining to himself), and which tend to set the verdict or decision based on the opposition between one law with another law when a judicial review to test materials that can be done by the Constitutional Court is the constitutionality of the vertical nature of the Constitution Act, no matter the collision of an Act by another Act. The Court therefore often considered to itself as a super-agency body because the always take refuge in the provisions of the Constitution that the decision shall be final and binding this institution sometimes make decisions that precisely exceeded its constitutional authority. Examples of cases that until now the lump is the decision of the Constitutional Court stating that the Constitution is not included Judges can judge supervised by the Judicial Commission that no institution that can oversee the Court unless "God" or the public through the supervision of a not-pengawan formal and not institutional.
Therefore be normal if there is the idea that there is amendment which would restrict the authority and control over the Court. The direction of the Court is prohibited from making ultra petita (decision not requested by the applicant), regulatory decisions, and the decision to grant the cancellation of the things which are attributive to the Constitution submitted by the legislative body. Another direction of the amendment, the provisions of this Court is the need for external supervision that can be done by KY on Constitutional Justice with the new constitutional grounds, the prohibition to decide matters relating to himself (the principle of nemo judex in causa sua). In addition the amendment also needs to put the testing of all laws and regulations under the roof of the Court.

The Judicial Commission (KY)
The Judicial Commission is a state institution established in the grove of judicial power, but not the institutional holders of judicial power. According to the decision of the Constitutional Court No. 005/2006 supporting institutions is a special institution was established as an external oversight agency for the judicial power institutions. According to the Constitution of this institution the right to propose nominees and the other had the authority to maintain the dignity, honor, and the behavior of judges.
But the performance of its duties was the steps taken controversial KY. Even the authority of this institution is trimmed through a judicial review of a decision by the Court, based upon the petition by 30 people dialakukan justices.
The number of public statements about the behavior of the KY KY judge read the verdict led to even call the judge's court for review. This step is considered to interfere with the independence of judges and may affect the ongoing case in court. Therefore there is a suggestion that only deals with the behavior KY judges in the things that had nothing to do with the case, meaning KY can only handle matters related to business ethics course for the case has been fully controlled by the Supreme Court. Some even suggested that the KY Supreme Court placed under, or remain independent but incompatible chairman ex-officio by the Chairman of the Supreme Court.
But the opposite is proposed that the Chairman KY who is ex officio chairman of the Supreme Court. Controversy is actually more emotional than rational.
Speakers for the position and function in KY as stipulated in the Constitution right now, but need confirmation again. Constitutional Court's decision that KY is supporting institution can be justified in relation to judicial power, but it can be argued that as an external oversight agency was not supporting the position malinkan KY can also be called as a main institution. Therefore, as a state institution KY position parallel to the Constitutional Court and the Supreme Court.
Amendment of 1945 needs to be done to confirm these functions which essentially led to the strengthening of KY as an external oversight agency within the judicial power which, besides watching the Chief Justice and judges within the Supreme Court Justices also oversee the Constitution. With this view the articles that regulate KY 24B should be amended and re-synchronized with npasal 24A and Article 24C.