From the description in my previous post which was the title Should the Fifth Amendment 1945 THE CONTENTS (part I and part II) it is clear that further amendments to the 1945 results of the current changes it was necessary. The need for further amendment was not because the current one, because as a political choice that the contents of the Constitution is not related to a matter of right or wrong and not related to good or bad about it for two reasons:
First, because there are new developments requiring new resultante. Included in these reasons for Poleksosbud changes in society and for the implementation of the existing content of the Constitution created a new problem that was not expected when the problem is that the substance of the constitution can only be corrected through constitutional amendments.
Second, because there are issues that had been missed to be regulated in the constitution when such issues can only be regulated in the constitution (as the constitution of charge) either as a stand-alone issue or because they have to be a series of constitutional provisions that already exist.
Tdi Although the description above it seems clear that there is a need for further amending the 1945 Constitution, but there must be a first diperioritaskan the changes to the way (procedures) which regulated changes in Article 37 of the 1945 Constitution was the result of change today. Why?
In-depth discussions about further amendments to it, as seen also in the ToR sent by the Committee of this Convention to the speakers, we wanted to do a comprehensive follow-up changes. Whereas the provisions of Article 37 UUD 1945 the current nearly impossible to do a comprehensive change. Changes in existing procedures now require that changes made by pointing to certain articles proposed to be changed along with the reasons and the changes that complicate a single package we propose a systematic change, interconnected, and comprehensive. Exactly the problem can be seen from the provisions of article 37 paragraph (1) and paragraph (2) which reads:
(1) A proposal to amend the Articles of the Constitution can be scheduled in the MPR session if submitted by at least 1 / 3 of the total membership of the MPR.
(2) Any proposed change in the provisions of the Constitution submitted in writing and must clearly state what is proposed to be changed and why.
The provisions of article 37 paragraph (1) and paragraph (2) is clearly specify that only changes made to the articles that are considered needs to be changed and not in one comprehensive package. Therefore, if we want to do further in a comprehensive amendment that must first be done is to alter or amend Article 37 UUD 1945 amendment of the existing order does open the opportunity for a comprehensive change that. During the Article 37 has not been amended almost impossible for us further an agenda of comprehensive amendments.
Changes to chapter 37 on how the change should consider the various alternatives on how to change and institutions that do that now often raised by experts. As is known to have suggested that changes made through the formation of a neutral State Commission specifically formed to prepare a draft constitution changes the results can be determined by the Assembly by a certain quorum. There also are proposed, such as those listed as one offered by alternetif Commission Kosntitusi, so the change is done through a referendum (request opinions directly to the people) on a draft constitution prepared with cooked by a State Commission. Referendum proponent argued that the Constitution was a political contract is paramount and should be determined by the people.
From the various alternatives on how to change it changes over 37 UUD 1945 chapter of the amendment can be directed, for example, in the materials as follows:
First, change the Constitution established by the Assembly with the support of at least half the votes of all members of the Assembly, but the script prepared by a special state commission was formed to prepare a draft Constitution. In such a way that the Assembly voted to stay without discussing another design that has been prepared by the State Commission. While members of the State Commission shall consist of statesmen or leaders who recognized integrity and not partisan. State Commission can be established by the Assembly, whose members may be proposed by the President, the community, and other institutions as deemed necessary.
Second, change the Constitution through a referendum conducted on the design changes prepared by a State Commission which was established by the President. MPR must validate the results of the referendum without a vote again. If this alternative is chosen in conjunction with the change of Article 37 should also modified the provisions of article 2, paragraph (3) which stipulates that "All decisions of the Assembly established by majority vote" in order to open the possibility that the Assembly did not change the Constitution must be based on a majority vote but immediately approve the referendum results.
Other alternatives on how to change it still needs to be even mentioned, an important article the current 37 must be amended first so we can make further amendments to a comprehensive. Without a change in the first 37 UUD 1945 chapter of the applicable amendment hardly possible now we can make further amendments to the 1945 Constitution in a comprehensive manner.
FURTHER EXPLANATION:
Presented at the National Law Convention 1945 The Grand Design Basis Constitutional and Political System of the National Law organized by the National Law Development Agency - Ministry of Law and Human Rights in Jakarta on 15-16 April 2008.
Professor in the Faculty of Law and Constitutional Justice UII on the Constitutional Court of the Republic of Indonesia.
The substance of this section has disampaiakn discussions at the Assembly of PKB faction, dated January 10, 2008.
The original here is intended as the Constitution was first established by PPKI on August 18, 1945, then applied again with Presidential Decree dated July 5, 1959 after the Constitution into effect mediated by the RIS 1949 and 1950 Constitution.
The official term is "change" but in this paper used the term in the same change in terms of the amendment because the amendment that the term does mean change.
More speakers agree to use the term follow-up because the amendment formally kenyataaanya although it is true of the 1945 Constitution changed four times, but in fact substantially changed only one time but gradually passed four times. Change 1999-2002 Constitution is a series that his design was agreed in October 1999 while the discussion carried out continuously for 3.5 years but the enactment is done every month in August according to the stages achieved from one trial to the next trial period. So the change is actually only one set of execution of the idea (design) the formality enactment conducted in four stages of the trial. If changes are made four times that which was changed at the Annual Session of the Assembly changed again at the next Annual Session of the Assembly, whereas none of the changes because the changes are merely a continuation of an established concept since awal.Tetapi use of this term is not substantive, so speakers do not mind if anyone uses the term the fifth amendment because it does MPR (1999-2002) is four times of change.
Pancasila here always made the same breath with the 1945 Constitution, even though they are different because one (Pancasila) can not be changed as a modus vivendi and staatsfundamentalnorms, while the other (1945) bias changed with new resultante.
Speakers prefer to follow the opinion Satjipto Rahardjo founding fathers that the term should be replaced with the term because people founding member and PPKI BPUPKI which is regarded as the founder of that country have women members.
Term diberhalakan or idolatry of the 1945 is taken from the expression of speakers who are often put forward by former Muhammadiyah chairman Ahmad Syafii Maarif.
When fit and proper test for Constitutional Justice candidate selection date is March 12, 2008 and 10 beacon mengemuakan speakers who may not be made by the Court because of the ten things that violate the dirambukan sphere beyond the legislative authority or the Court as a judicial institution.
See the RAB Kusumah, 1945 Birth of the Constitution, Badan Penerbit Universitas Indonesia Faculty of Law, Jakarta, 2004.
In fact valid proposition of Lord Acton that power tends to corrupt, so that the officials who had been good after the ruling becomes corrupt if the system is not too tight to close or limit opportunities for corruption.
Speakers can not mention the source of this quote is precisely because the opinion of the speakers Taufik Abdullah read in the newspaper Media Indonesia on one flight from Yogyakarta to Jakarta in late 1998 a day and forget the date speaker. But it made perfect sense.
This section until a couple of down-edited from the writings of authors who contributed and published in the book "Towards a Strong Presidential System", prepared by the Constitutional Review Team PKB Faction MPR speaker in 2007 which itself became its chairman.
In mid-March 2007 speakers have discussed this with Chairman of the People's Consultative Assembly Hidayat Nurwahid but reached the same conclusion that the 1945 results of four times does not anticipate this change and it could cause a political crisis.
It could also happen if for example the Crescent Star Party was (supposedly) go carry the SBY-JK partner with the Democratic Party did not want to come brought a new potential partner with the Democratic Party.
For example the Constitutional Court's decision that turned out wrong or cause problems when the decision shall be final and binding. There are disputes election results by the Constitutional Court rejected his complaint but the perpetrator was sentenced by a court of general criminal because it was cheating. Another example is the decision of the Court of Justice issued the Constitution of the scope or the scope of supervision by the Commission on Judicial when we, for example, that the Constitution requires judges also supervised by KY. Because of this problem is the substance of the constitution must be pembenahannya through constitutional amendments.
BE GOOD FOR YOU ALL USEFUL
Showing posts with label amendment. Show all posts
Showing posts with label amendment. Show all posts
Sunday, January 3, 2010
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.
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.
Should the Fifth Amendment 1945 THE CONTENTS ( PART 1 )
THREE CHANGES ON CASH Constitution
Title papers by the Committee formulated in the form of questions like the above are very relevant to the discourse and political movements that exist today. Because until now the controversy around the 1945 changes is still going to the mapped outline of the three groups or currents. First, the current group or who want to go back to the 1945 original; Second, groups or who want to maintain the current constitution of the current amendment and; Third, the current group or who want to make any changes or further amendments in the Convention which is called the Fifth Amendment .
The first flow is driven or followed by several prominent retired military, especially some who formerly had been sworn to be loyal Sapta Margais on Pancasila and the 1945 Constitution. Supporting this flow is not much but still there, even at the seminar held by the Member Watimpres April 3, 2008 ago still deploring the 1945 changes. The reason this current followers the 1945 changes have been excessive, betrayed the mandate and the work of the founder or founding people, emotionally, in a hurry, and do not absorb society or socialized aspirsi proportionately.
The second flow is generally followed by (the members) parties that have seats in the House of Representatives and the dominant People's Consultative Assembly, especially those who used to be a member of the Ad Hoc Pantia I menggodog Assembly who served the 1945 change from 1999 until 2002. According to further changes that they need not be done because the results of the current amendment is absorbed and compromise all the growing aspirations of the community when it dalamm. According to realize that they must make changes to the Constitution that would drain an enormous energy and whatever the outcome there will be a mepersoalkan also; changed again too there would later be questioned on the results. Efforts to change the Constitution again potentially provoke political conflict that could disrupt our concentration of effort or hold government to improve the lot of the people. So for this current is used to fill an important implement the 1945 amendments of the best. It should be mentioned also that the strength of the discourse further changes in society, although many members of the MPR / DPR is not agreed yet on the political parties are saying that the changes in the 1945 follow-up can be done but its timing is not right if it is done before the year 2009.
The third flow is the most powerful currents that are supported by almost all legal scholars and political scientists at universities, institutions of Constitutional studies, NGO activists and Constitutional law, members of the Constitutional Commission, and several major organizations. The reason advanced by the need to change this current followers because in fact the 1945 hasilperubahan does contain some weaknesses that must be repaired as reasonable demands.
Current attitudes of differences that can be expressed openly without fear of reprisals by the authorities, such as ekspressi made by followers of the three currents, must be recorded as a separate progress in democratic life after such a change on the 1945 Constitution. We can not be questioned thought the current Constitution (yalni 1945) on the two-order before the reform of the Old Order (1959-1967) and New Order (1967-1998). In the long period that the 1945 diberhalakan such a way that can not be questioned.
NEED FOR SECONDARY Constitution's Amendment
Own speakers agreed that the third current need for change or further amendment of the 1945 amendments to the results remain important to note that the 1945 Constitution of the changes have now been brought progress in our constitutional life.
Undeniably, has achieved much progress in our constitutional life based on the results of the 1945 amendments. Life of our nation far more democratic. No more censorship of the press, let alone pembreidelan of the press, the process of running a democratic election, the government could no longer be authoritative because it is always controlled by the press, public, and political institutions of the other.
Among those who have given special note of the progress of our constitution is the existence and achievements of the Constitutional Court (MK) as a new judicial institution. In the past a lot of that Act made unilaterally by the government (and the House only made a kind of rubber stamp) can be canceled without indicated strong though it violates the Constitution. Changes to the Law on the troubled past can only be done through a legislative review of the practice is largely determined by the government. Even the case of changes in Broadcasting Bill 1997 to the hard black stains removed from the historical journey of our legislation. As it was discussed the Bill on Broadcasting and debated for a long time in the Parliament until the Government and the Parliament finally agreed to its enactment. But once submitted to the President for signature and enactment were the President refused and asked for discussion back to changed some of its contents. It is this that encourages the emergence of Article 20 paragraph (5) in the 1945 amendments to the present results.
With all of the Constitutional Court Act which was considered contrary to the Constitution may be requested a judicial review (judicial review) for the declared contradictory to the 1945 or unconstitutional, so do not have binding legal force. It may be argued that the Court has appeared as an independent state institution and quite productive issued rulings that strongly support for the life of a democratic constitution.
Just imagine, in not yet reached the age of five years (established in August 2003) the Court has done and deciding test (judicial review) of the Constitution Act by more than 140 times. Act of 63 tested were numbered Act, but many of the Act which tested more than once (there was even tested to seven times, namely the law on KPK) with the test materials vary. Indeed of the many decisions of the Constitutional Court there are a few (about four or five) a controversial decision because it was considered beyond the limits of authority and violation of, or entered into the legislative sphere. Speakers including the hard criticize these realities. But it must be remembered that the existence of four or five of the controversial verdict was very small compared to the overall verdict berjunlah more than 140 convictions. In addition it must be remembered also that a controversial verdict was not necessarily wrong.
The first objection to the current
As mentioned above with the current speakers who want change back the 1945 amendment to counter the arguments against the two other currents of the stream you want to go back to the 1945 original or the current amendment to retain the existing results today.
Against the current to return to the 1945 Constitution states that the speaker does not really change (1999-2002) that has betrayed the mandate and the political consensus of the founding fathers of the Constitution. Before the Constitution was enacted in 1945 on August 18, 1945 PPKI Chairman Sukarno himself said that the 1945 Constitution will be ratified Constitution when it was lightning, emergency and temporary needs to be improved or changed again when the atmosphere was conducive. Encouragement was untukmengubah returned by the founding fathers also set forth in the 1945 Constitution itself that is in the Additional Rules which states:
(1) Within six months after the last war Greater East Asia, President of Indonesia set up and organize all the things stipulated in this Constitution.
(2) Within six months after the People's Consultative Assembly was formed, the Panel was convened to establish the Constitution.
Fill Bung Karno's speech on August 18, 1945 and Rules The transition was certainly encourage changes to the 1945 Constitution by the elected representatives are elected by popular vote if the atmosphere was conducive. Indeed the term "set the Constitution" are listed at the end of the sentence in paragraph (2) Transitional rule that could be interpreted "set back" but the implication as to be less logical, because if just the 1945 enactment is done by PPKI was very strong and did not need setting back by the Assembly if it wants to remain in place. Thus the content of Bung Karno's speech and the provisions of the Additional Rules are encourage changes for 1945 (the original), and therefore the changes made (1999-2002) by the Assembly is not a betrayal of its founding agreement, let alone modus vivendi or agreement that is luhurnya " The opening of "the Constitution which includes the Pancasila as the basic state was not changed.
Not true also to say that the results of the 1945 amendments (1999-2002) made in a hurry and are not socialized to absorb the aspirations and materials in a comprehensive manner. In fact both time and agenda of the changes already made much longer and more comprehensive than that conducted by the founding people.
Even if mathematically calculated the 1945 changes in 1999-2002 period longer time to 12-fold when compared with the original creation. So can not say it as a job change in a hurry. The original 1945 only addressed in the trial of intermittent for about 2 months and 3 weeks (31 May to 18 August 1945) with a long 12-day trial only the Plenary Session I BPUPKI for 4 days (May 29-June 1 ), Plenary Session II BPUPKI 7 days (10-16 July 1945), Plenary Session PPKI discuss and ratify the 1945 Constitution for 1 day (August 18, 1945). There is also an additional 1 day of the 9th session of the Committee reported as Sukarno trial procedures that do not meet the formalitet Sittings of June 22, 1945 that gave birth to the Jakarta Charter.
While the 1945 results amademen discussed during the 2 years 10 months or 34 months (October 10, 1999 to 10 August 2002) with a discussion of the almost without halting. The discussion during the 34 months that includes a plenary session and the sessions of the Assembly I PAH out in August and the absorption of aspiration into various areas and college campuses, even to some countries.
So the process involves amanndemen 1999-2002 was a very comprehensive thinking. That there is no ordinary satisfaction that only because the amendment is a political agreement of the various desires of aggregating and politically filtered. Whatever the results of the determination and the amendments, which will be used or dating, there are not satisfied because the people were not monolithic. The important aggregation and establishment of democratic and through the proper procedure or constitutional. If you want to wait for all the people there will never be satisfied as well as changes in the determination of the Constitution.
There is also the speaker's view was denied by saying that in fact the founding fathers not only convene within 12 days 81 days because they are already thinking about it since 1928 when the Youth Oath was announced. But this argument was difficult to accept because of the thought that had emerged since 1928 are still scattered, there was no evidence that there is unity of the idea to then poured in a constitution which became the 1945 original was. If that way of thinking can be accepted then said that efforts to amend the 1945 Constitution was far longer, even to amend any thoughts already begun on the day of the 1945 Constitution itself was ratified on August 18, 1945. This is evident from Sukarno's speech on that day and the contents of the 1945 Rules Supplement dikemuakan as above. Besides the 1945 change in practice was already done before through three months of independent Indonesia conducted through a Notice of No exit. X on October 16, 1945.
In addition we have a clear historical record that fact during the application of the original 1945 constitution of life we never gave birth to a democratic government. Is because the system is not strictly limit the power of the mechanism of checks and balances. 1945 Constitution of the original `more faith in the spirit of man, but the spirit of man can be co-opted by the corrupt tendencies of power as Lord Acton said that power tends to corrupt.
Even so speakers should be emphasized also that the original 1945 Constitution is a product of a very good resultante at the time made; he Poleksosbud needs at the time and could be used as a political platform and ketatanegaraa clean and immoral for the state at the time. Match it became necessary because at that time the founders of our country and politicians are still very idealistic, tempered statesman, challenges or temptations facing materials that do not have much too much to be contested, and at that time the leaders of our country does have the spirit of developing countries because of new clean escape from the corrupt colonial government. Historian Taufik Abdullah has said that the founders of our country is very straight and innocent as ever in power or have not always ruled by a colonial government that did not know the dangers of power that's why they made the Constitution that more people believe in the spirit than to the strict constitutional system.
Therefore the current needs are far different, the challenge also is far more complex, human-human nature is not like before the original 1945 Constitution that need to be changed as needed.
Refutation of the second flow
Speakers also reject the view that the current 1945 Constitution requires that the amendment be maintained as it is by reason of such change has taken up and through the political work that was exhausting. Especially when it is said that efforts to make changes that will disrupt the activities of government to think about the fate of the people to get out of slump (especially) economy. It must be remembered that the process of change can be done in parallel (simultaneously) with the daily administration without disturbing each other because they both have different field which has been maintained by different agencies.
The most basic reason of the rejection of the current speaker on this second view is the fact that the Constitution is, wherever and whenever, is resultante agreed based on the needs of the time made. As stated by KC Wheare in his book The Modern Constitutions resultante or constitution is a product based on the consensus of the manufacturer specific Poleksosbud situation so that if the poleksosbudnya changed his resultante can also be changed. Therefore, the average change in the constitution of the world's longest running after 30 years applies. There was no constitution which does not change.
Indeed the 1945 Constitution of the current changes must be accepted as a fact that has brought progress to the life of our constitution. From the point of the contents of the amendment of the Constitution was far more advanced and bring progress to our constitutional life. Although it must be admitted that the change is still needed both about the substance or structure or sistematikanya. From the point of the structure or systemization of the 1945 Constitution was not in harmony hasilperubahan, like the body size of the hand or foot is not balanced. This is a result only of our political choices when it will amend the 1945 Constitution that one of them to make changes to the way Addendum.
In this connection it must be remembered also that the contents of the constitution is a political choice, not about the "right" or "wrong" and not about "good" or "bad." It's all wrong and bad are relative, depending on the view and interests respective political. But apart from questions of "good-bad" and "right-wrong" constitutions that have been defined legally binding and must be implemented. If the rules of science in usul fiqh (Islamic jurisprudence) are valid arguments "hukmul haakim yarfa'ul khilaaf," the government's decision (the competent authorities) to end the controversy about right or wrong and good or bad about that should be implemented. Because the contents of the Constitution was a political choice of the effort to change the constitution is not necessarily mean that the existing wrong or bad. The subject of constitutional reform efforts that are making a political agreement (resultante) just because there are new developments, or because there are important things are missing or because of any problems (kekuarangan) on existing constitutions or are valid. Can be exemplified by some of the problems and offer alternative solutions which now appears, as below.
Resultante to reposition the DPD
The presence of the DPD for this bet is problematic and a waste of constitutional because the functions, rights, and authorities are not binding. So naturally, if the idea to look for new resultante to reposition the DPD is constitutionally in our constitutional system.
Currently there are adamant to say that the position and function of the DPD does not need to be changed because since the beginning of the DPD is not in-design as the Senate but the current design as a continuation of the Regional Representatives in the past. As an option resultante positioning the Assembly when it is such a DPD is not wrong, because in the past, regional representatives were barely functioning, at least far below the function and authority given to the current DPD. So the position, function, and authority of the DPD is now much go too far bakalnya own genesis of regional representatives who had existed before the Constitution was amended in 1945.
But if that's the reason of course is too trivial. Because if we can not proportional to question by asking: What is wrong if we make a new resultante about DPD design? Is not it just depends on our agreement? Indeed such questions can be answered with a question back: What is the need to create a new design for the DPD? Of course, no one of the two opposing these questions. But as a political choice that speakers at today DPD needs to be repositioned to be more productive, democratic and not cause administrative waste. These institutions must be strengthened in order to become part of the legislative though limited in certain things. There are no restrictions at all to make such resultante.
Some say that DPD is a strong positioning and be part of the legislature, let alone comparable to the House as the Senate in the bicameral system, is not in accordance with the design theory of the unitary state that was agreed as a form of our country. This view is not scientifically acceptable due to two reasons:
First, the state administration system contained in the constitution of a country that is a result that makes kesepakan nation without having to join or not join the theory of specific theories and systems in other countries. Whatever is stated in the constitution, that is true. So we can make design based on our political agreement without having to join or not join a theory of political and constitutional expert and without having to join or not join the system prevailing in other countries.
Second, in fact there is no single standard theory about the connection between bicameral system with state of the fact that many countries that embrace unity bicameral or unicameral
Title papers by the Committee formulated in the form of questions like the above are very relevant to the discourse and political movements that exist today. Because until now the controversy around the 1945 changes is still going to the mapped outline of the three groups or currents. First, the current group or who want to go back to the 1945 original; Second, groups or who want to maintain the current constitution of the current amendment and; Third, the current group or who want to make any changes or further amendments in the Convention which is called the Fifth Amendment .
The first flow is driven or followed by several prominent retired military, especially some who formerly had been sworn to be loyal Sapta Margais on Pancasila and the 1945 Constitution. Supporting this flow is not much but still there, even at the seminar held by the Member Watimpres April 3, 2008 ago still deploring the 1945 changes. The reason this current followers the 1945 changes have been excessive, betrayed the mandate and the work of the founder or founding people, emotionally, in a hurry, and do not absorb society or socialized aspirsi proportionately.
The second flow is generally followed by (the members) parties that have seats in the House of Representatives and the dominant People's Consultative Assembly, especially those who used to be a member of the Ad Hoc Pantia I menggodog Assembly who served the 1945 change from 1999 until 2002. According to further changes that they need not be done because the results of the current amendment is absorbed and compromise all the growing aspirations of the community when it dalamm. According to realize that they must make changes to the Constitution that would drain an enormous energy and whatever the outcome there will be a mepersoalkan also; changed again too there would later be questioned on the results. Efforts to change the Constitution again potentially provoke political conflict that could disrupt our concentration of effort or hold government to improve the lot of the people. So for this current is used to fill an important implement the 1945 amendments of the best. It should be mentioned also that the strength of the discourse further changes in society, although many members of the MPR / DPR is not agreed yet on the political parties are saying that the changes in the 1945 follow-up can be done but its timing is not right if it is done before the year 2009.
The third flow is the most powerful currents that are supported by almost all legal scholars and political scientists at universities, institutions of Constitutional studies, NGO activists and Constitutional law, members of the Constitutional Commission, and several major organizations. The reason advanced by the need to change this current followers because in fact the 1945 hasilperubahan does contain some weaknesses that must be repaired as reasonable demands.
Current attitudes of differences that can be expressed openly without fear of reprisals by the authorities, such as ekspressi made by followers of the three currents, must be recorded as a separate progress in democratic life after such a change on the 1945 Constitution. We can not be questioned thought the current Constitution (yalni 1945) on the two-order before the reform of the Old Order (1959-1967) and New Order (1967-1998). In the long period that the 1945 diberhalakan such a way that can not be questioned.
NEED FOR SECONDARY Constitution's Amendment
Own speakers agreed that the third current need for change or further amendment of the 1945 amendments to the results remain important to note that the 1945 Constitution of the changes have now been brought progress in our constitutional life.
Undeniably, has achieved much progress in our constitutional life based on the results of the 1945 amendments. Life of our nation far more democratic. No more censorship of the press, let alone pembreidelan of the press, the process of running a democratic election, the government could no longer be authoritative because it is always controlled by the press, public, and political institutions of the other.
Among those who have given special note of the progress of our constitution is the existence and achievements of the Constitutional Court (MK) as a new judicial institution. In the past a lot of that Act made unilaterally by the government (and the House only made a kind of rubber stamp) can be canceled without indicated strong though it violates the Constitution. Changes to the Law on the troubled past can only be done through a legislative review of the practice is largely determined by the government. Even the case of changes in Broadcasting Bill 1997 to the hard black stains removed from the historical journey of our legislation. As it was discussed the Bill on Broadcasting and debated for a long time in the Parliament until the Government and the Parliament finally agreed to its enactment. But once submitted to the President for signature and enactment were the President refused and asked for discussion back to changed some of its contents. It is this that encourages the emergence of Article 20 paragraph (5) in the 1945 amendments to the present results.
With all of the Constitutional Court Act which was considered contrary to the Constitution may be requested a judicial review (judicial review) for the declared contradictory to the 1945 or unconstitutional, so do not have binding legal force. It may be argued that the Court has appeared as an independent state institution and quite productive issued rulings that strongly support for the life of a democratic constitution.
Just imagine, in not yet reached the age of five years (established in August 2003) the Court has done and deciding test (judicial review) of the Constitution Act by more than 140 times. Act of 63 tested were numbered Act, but many of the Act which tested more than once (there was even tested to seven times, namely the law on KPK) with the test materials vary. Indeed of the many decisions of the Constitutional Court there are a few (about four or five) a controversial decision because it was considered beyond the limits of authority and violation of, or entered into the legislative sphere. Speakers including the hard criticize these realities. But it must be remembered that the existence of four or five of the controversial verdict was very small compared to the overall verdict berjunlah more than 140 convictions. In addition it must be remembered also that a controversial verdict was not necessarily wrong.
The first objection to the current
As mentioned above with the current speakers who want change back the 1945 amendment to counter the arguments against the two other currents of the stream you want to go back to the 1945 original or the current amendment to retain the existing results today.
Against the current to return to the 1945 Constitution states that the speaker does not really change (1999-2002) that has betrayed the mandate and the political consensus of the founding fathers of the Constitution. Before the Constitution was enacted in 1945 on August 18, 1945 PPKI Chairman Sukarno himself said that the 1945 Constitution will be ratified Constitution when it was lightning, emergency and temporary needs to be improved or changed again when the atmosphere was conducive. Encouragement was untukmengubah returned by the founding fathers also set forth in the 1945 Constitution itself that is in the Additional Rules which states:
(1) Within six months after the last war Greater East Asia, President of Indonesia set up and organize all the things stipulated in this Constitution.
(2) Within six months after the People's Consultative Assembly was formed, the Panel was convened to establish the Constitution.
Fill Bung Karno's speech on August 18, 1945 and Rules The transition was certainly encourage changes to the 1945 Constitution by the elected representatives are elected by popular vote if the atmosphere was conducive. Indeed the term "set the Constitution" are listed at the end of the sentence in paragraph (2) Transitional rule that could be interpreted "set back" but the implication as to be less logical, because if just the 1945 enactment is done by PPKI was very strong and did not need setting back by the Assembly if it wants to remain in place. Thus the content of Bung Karno's speech and the provisions of the Additional Rules are encourage changes for 1945 (the original), and therefore the changes made (1999-2002) by the Assembly is not a betrayal of its founding agreement, let alone modus vivendi or agreement that is luhurnya " The opening of "the Constitution which includes the Pancasila as the basic state was not changed.
Not true also to say that the results of the 1945 amendments (1999-2002) made in a hurry and are not socialized to absorb the aspirations and materials in a comprehensive manner. In fact both time and agenda of the changes already made much longer and more comprehensive than that conducted by the founding people.
Even if mathematically calculated the 1945 changes in 1999-2002 period longer time to 12-fold when compared with the original creation. So can not say it as a job change in a hurry. The original 1945 only addressed in the trial of intermittent for about 2 months and 3 weeks (31 May to 18 August 1945) with a long 12-day trial only the Plenary Session I BPUPKI for 4 days (May 29-June 1 ), Plenary Session II BPUPKI 7 days (10-16 July 1945), Plenary Session PPKI discuss and ratify the 1945 Constitution for 1 day (August 18, 1945). There is also an additional 1 day of the 9th session of the Committee reported as Sukarno trial procedures that do not meet the formalitet Sittings of June 22, 1945 that gave birth to the Jakarta Charter.
While the 1945 results amademen discussed during the 2 years 10 months or 34 months (October 10, 1999 to 10 August 2002) with a discussion of the almost without halting. The discussion during the 34 months that includes a plenary session and the sessions of the Assembly I PAH out in August and the absorption of aspiration into various areas and college campuses, even to some countries.
So the process involves amanndemen 1999-2002 was a very comprehensive thinking. That there is no ordinary satisfaction that only because the amendment is a political agreement of the various desires of aggregating and politically filtered. Whatever the results of the determination and the amendments, which will be used or dating, there are not satisfied because the people were not monolithic. The important aggregation and establishment of democratic and through the proper procedure or constitutional. If you want to wait for all the people there will never be satisfied as well as changes in the determination of the Constitution.
There is also the speaker's view was denied by saying that in fact the founding fathers not only convene within 12 days 81 days because they are already thinking about it since 1928 when the Youth Oath was announced. But this argument was difficult to accept because of the thought that had emerged since 1928 are still scattered, there was no evidence that there is unity of the idea to then poured in a constitution which became the 1945 original was. If that way of thinking can be accepted then said that efforts to amend the 1945 Constitution was far longer, even to amend any thoughts already begun on the day of the 1945 Constitution itself was ratified on August 18, 1945. This is evident from Sukarno's speech on that day and the contents of the 1945 Rules Supplement dikemuakan as above. Besides the 1945 change in practice was already done before through three months of independent Indonesia conducted through a Notice of No exit. X on October 16, 1945.
In addition we have a clear historical record that fact during the application of the original 1945 constitution of life we never gave birth to a democratic government. Is because the system is not strictly limit the power of the mechanism of checks and balances. 1945 Constitution of the original `more faith in the spirit of man, but the spirit of man can be co-opted by the corrupt tendencies of power as Lord Acton said that power tends to corrupt.
Even so speakers should be emphasized also that the original 1945 Constitution is a product of a very good resultante at the time made; he Poleksosbud needs at the time and could be used as a political platform and ketatanegaraa clean and immoral for the state at the time. Match it became necessary because at that time the founders of our country and politicians are still very idealistic, tempered statesman, challenges or temptations facing materials that do not have much too much to be contested, and at that time the leaders of our country does have the spirit of developing countries because of new clean escape from the corrupt colonial government. Historian Taufik Abdullah has said that the founders of our country is very straight and innocent as ever in power or have not always ruled by a colonial government that did not know the dangers of power that's why they made the Constitution that more people believe in the spirit than to the strict constitutional system.
Therefore the current needs are far different, the challenge also is far more complex, human-human nature is not like before the original 1945 Constitution that need to be changed as needed.
Refutation of the second flow
Speakers also reject the view that the current 1945 Constitution requires that the amendment be maintained as it is by reason of such change has taken up and through the political work that was exhausting. Especially when it is said that efforts to make changes that will disrupt the activities of government to think about the fate of the people to get out of slump (especially) economy. It must be remembered that the process of change can be done in parallel (simultaneously) with the daily administration without disturbing each other because they both have different field which has been maintained by different agencies.
The most basic reason of the rejection of the current speaker on this second view is the fact that the Constitution is, wherever and whenever, is resultante agreed based on the needs of the time made. As stated by KC Wheare in his book The Modern Constitutions resultante or constitution is a product based on the consensus of the manufacturer specific Poleksosbud situation so that if the poleksosbudnya changed his resultante can also be changed. Therefore, the average change in the constitution of the world's longest running after 30 years applies. There was no constitution which does not change.
Indeed the 1945 Constitution of the current changes must be accepted as a fact that has brought progress to the life of our constitution. From the point of the contents of the amendment of the Constitution was far more advanced and bring progress to our constitutional life. Although it must be admitted that the change is still needed both about the substance or structure or sistematikanya. From the point of the structure or systemization of the 1945 Constitution was not in harmony hasilperubahan, like the body size of the hand or foot is not balanced. This is a result only of our political choices when it will amend the 1945 Constitution that one of them to make changes to the way Addendum.
In this connection it must be remembered also that the contents of the constitution is a political choice, not about the "right" or "wrong" and not about "good" or "bad." It's all wrong and bad are relative, depending on the view and interests respective political. But apart from questions of "good-bad" and "right-wrong" constitutions that have been defined legally binding and must be implemented. If the rules of science in usul fiqh (Islamic jurisprudence) are valid arguments "hukmul haakim yarfa'ul khilaaf," the government's decision (the competent authorities) to end the controversy about right or wrong and good or bad about that should be implemented. Because the contents of the Constitution was a political choice of the effort to change the constitution is not necessarily mean that the existing wrong or bad. The subject of constitutional reform efforts that are making a political agreement (resultante) just because there are new developments, or because there are important things are missing or because of any problems (kekuarangan) on existing constitutions or are valid. Can be exemplified by some of the problems and offer alternative solutions which now appears, as below.
Resultante to reposition the DPD
The presence of the DPD for this bet is problematic and a waste of constitutional because the functions, rights, and authorities are not binding. So naturally, if the idea to look for new resultante to reposition the DPD is constitutionally in our constitutional system.
Currently there are adamant to say that the position and function of the DPD does not need to be changed because since the beginning of the DPD is not in-design as the Senate but the current design as a continuation of the Regional Representatives in the past. As an option resultante positioning the Assembly when it is such a DPD is not wrong, because in the past, regional representatives were barely functioning, at least far below the function and authority given to the current DPD. So the position, function, and authority of the DPD is now much go too far bakalnya own genesis of regional representatives who had existed before the Constitution was amended in 1945.
But if that's the reason of course is too trivial. Because if we can not proportional to question by asking: What is wrong if we make a new resultante about DPD design? Is not it just depends on our agreement? Indeed such questions can be answered with a question back: What is the need to create a new design for the DPD? Of course, no one of the two opposing these questions. But as a political choice that speakers at today DPD needs to be repositioned to be more productive, democratic and not cause administrative waste. These institutions must be strengthened in order to become part of the legislative though limited in certain things. There are no restrictions at all to make such resultante.
Some say that DPD is a strong positioning and be part of the legislature, let alone comparable to the House as the Senate in the bicameral system, is not in accordance with the design theory of the unitary state that was agreed as a form of our country. This view is not scientifically acceptable due to two reasons:
First, the state administration system contained in the constitution of a country that is a result that makes kesepakan nation without having to join or not join the theory of specific theories and systems in other countries. Whatever is stated in the constitution, that is true. So we can make design based on our political agreement without having to join or not join a theory of political and constitutional expert and without having to join or not join the system prevailing in other countries.
Second, in fact there is no single standard theory about the connection between bicameral system with state of the fact that many countries that embrace unity bicameral or unicameral
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