The Meaning of Trias Politica and Its Application in the Indonesian Government System

Trias Politica – A country can be said to be running well if there is a legal territory or territory, in which it has a legitimate government, is recognized, sovereign, and is given legal power to regulate its people. Legitimate power here means that a sovereign government is representative of all the people and exercises power at the will of the people.

Power itself is authority over something or to determine something (to command, represent, manage, and so on). The government in this case exercises power over the will of the people, which means that based on the consensus contained in the Preamble to the 1945 Constitution of the Republic of Indonesia it has been agreed that the people give authority to the government to govern, represent and manage government affairs.

The division or separation of powers is often known as the ” trias politica “. This term comes from the Greek, namely tri which means “three”, as which means “axis” or “center”, and politica which means “power”. The definition of trias politica is a teaching which assumes that state power consists of three kinds of power, namely legislative, executive and judicial.

Legislative power is the power to make laws, executive power is the power to implement laws, and judicial power is the power to prosecute violations of laws.

Originator of the Trias Politica Concept

What is Trias Politica ?

The term trias politica comes from the Greek which means “triad politics”. In simple terms trias politica is a political concept which means separation of powers. According to Wahyu Eko Nugroho in his journal entitled Implementation of Trias Politica in the Government System in Indonesia , trias politica is an idea that a sovereign government must be separated between two or more independent strong units. The goal is to prevent absolute state power.

The concept of trias politica was first put forward by John Locke, a British philosopher who was later developed by Montesquieu in his book entitled L’Esprit des Lois. This concept divides a state government into three types of powers, namely executive, legislative, and judicial. Indonesia as our beloved homeland is a democratic country that adheres to this concept.

Montesquieu, whose full name was Charles-Louis de Secondat, Baron de La Brède et de Montesquieu (18 January 1689–10 February 1755), was a French political thinker who lived during the Age of Enlightenment (English: enlightenment ) . He is famous for his theory of separation of powers which has been widely adapted in discussions on government and implemented in many constitutions around the world. He played an important role in popularizing the terms “feudalism” and “Byzantine Empire”.

Montesquieu is best known for his trias politica (separation of state power into three) teachings, namely the executive (executing laws), the legislature (making laws), and the judiciary or judiciary (monitoring the implementation of laws).

According to Montesquieu, the trias politica  includes:

1. Executive Powers

Executive power is an institution that implements laws. The executive branch is led by a king or president and his cabinet. Not only implementing laws, this institution also has several authorities.

According to Miriam Budiardjo, the executive branch has diplomatic, judicial, administrative, as well as legislative and military powers. Diplomatic authority is the authority to carry out diplomatic relations with other countries, while judicial authority is the authority to grant clemency and amnesty to citizens who violate the law.

Meanwhile, administrative authority is the authority to implement laws and regulations in state administration. Through its legislative powers, a president or minister can make laws with the legislature. The executive branch also has the authority to regulate the armed forces, declare war when necessary, and maintain state security.

2. Legislative Power

Legislative power is an institution established to prevent the arbitrariness of the king or president. The legislature which is the representative of the people is given the power to make laws and enact them. Not only that, this institution is also given the right to ask for information on policies of the executive branch that will be implemented or are being implemented.

In addition to requesting information from the executive branch, this body also has the right to investigate itself by forming an investigative committee. The right to vote of no confidence is also owned by this institution. This right is a right that has great potential to bring down the executive branch.

3. Judicial power

Judicial power is the power to control all state institutions that deviate from the laws that apply to that country. The judiciary was formed as a means of law enforcement, the right to examine materials, the settlement of disputes, and the right to pass legal regulations or cancel regulations if they are contrary to state principles.

Application of Trias Politica in Indonesia

In the following, we explain one by one the application of Trias Politica in Indonesia based on each division of power:

1. Executive Powers

Executive power is the power to carry out laws and the wheels of government. This power in Indonesia is held by the president. However, bearing in mind that it is impossible to carry out law enforcement activities alone, the president has the authority to delegate executive tasks to other government officials who help him, namely ministers.

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2. Legislative Power

Legislative power is the power to make laws. There are three institutions that are given legislative authority in Indonesia, namely the People’s Consultative Assembly (MPR), the People’s Representative Council (DPR), and the Regional Representatives Council (DPD).

3. Judicial power

Judicial power is the power that is obliged to defend the law and has the right to provide justice to its people or simply called judicial power. Article 24 paragraph (1) of the 1945 Constitution states that the judicial power is an independent power to administer justice to uphold law and justice.

The judicial function in Indonesia is carried out by the Supreme Court (MA) and the Constitutional Court (MK). The Supreme Court is the court of cassation or the last and highest state court, one of whose functions is to foster uniformity in the application of law through cassation decisions and judicial review. Meanwhile, one of the powers of the Constitutional Court is to review laws against the Constitution.

It should be noted, in addition to the three divisions of power mentioned above, in Indonesia there is also an examinative power as mandated in Article 23E paragraph (1) of the 1945 Constitution, namely as a power that functions to audit state finances, namely the Audit Board of the Republic of Indonesia (BPK).

A country can be said to be running well if there is a legal territory or territory, in which it has a legitimate government, is recognized, sovereign, and is given legal power to regulate its people. Legitimate power here means that a sovereign government is representative of all the people and exercises power at the will of the people.

Power itself is authority over something or to determine something (to command, represent, manage, and so on). The government in this case exercises power over the will of the people, which means that based on the consensus contained in the Preamble to the 1945 Constitution of the Republic of Indonesia it has been agreed that the people give authority to the government to govern, represent and manage government affairs.

When running the wheels of government, the government needs a “government system”. The government system is a combination of two terms, namely “system” and “government”. The system is a whole consisting of several parts that have a functional relationship between the parts and the relationship to the whole, so that the relationship creates dependence between the parts which if one part does not work properly will affect the whole.

Meanwhile, governance in a broad sense is all the affairs carried out by the state in carrying out people’s welfare and the interests of the state itself; so it is not interpreted as a government that only carries out executive duties, but also includes other tasks including the legislature and the judiciary.

When discussing the system of government, it is closely related to the distribution of powers and the relationship between state institutions that exercise the powers of the state, in order to carry out the interests of the people, namely achieving the national ideals contained in the Preamble to the 1945 Constitution of the Republic of Indonesia, Paragraph IV, namely protecting all of Indonesia’s bloodshed, promoting public welfare, educating the nation’s life, and participating in carrying out world order based on freedom, eternal peace and social justice.

State institutions in carrying out state powers need to be limited so that they are not arbitrary, do not overlap in authority, and do not concentrate power in one institution. This is what makes it necessary to have a division or separation of powers. This is intended solely to guarantee the human rights of its citizens so that they are not treated arbitrarily by the authorities.

The statement above is in line with the expression of Lord Acton ” power tends to corrupt, but absolute power corrupts absolutely ” (humans who have power tend to abuse it, but humans who have unlimited power will definitely abuse it). Therefore, power must be divided or separated so that it is not abused.

The division or separation of powers is often known as the ” trias politica “. The concept of trias politica was put forward by a French philosopher named Montesquieu. Trias politica comes from the Greek tri meaning “three”, as meaning “axis” or “center”, and politica meaning “power”.

The definition of trias politica is a teaching which assumes that state power consists of three kinds of power, namely legislative, executive and judicial. Legislative power is to make laws, executive power is the power to implement laws, and judicial power is the power to judge violations of laws.

The concept of trias politica is a normative principle that powers should not be handed over to the same person to prevent abuse of power by those in power. That is, the concept of trias politica from Montesquieu which was written in his book entitled L’esprit des lois ( The Spirit of Laws ) offers a concept regarding state life by carrying out a separation of powers which are expected to be mutually exclusive in equal positions, so that they can control and balance each other. each other ( check and balance ).

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In addition, through this concept it is hoped that it can limit power so that there is no concentration of power in one hand which will later give birth to arbitrariness. In terms of the division of powers, state institutions or government agencies can be divided into two parts, namely:

  1. Vertically, namely the division of power according to its level. The point is the division of power between several levels of government, for example between the central government and regional governments in a unitary state.
  2. Horizontally, namely the division of power according to its function. That is, this division focuses more on the distinction between legislative, executive and judicial functions of government.

The division of powers referred to in this study is the horizontal division of powers, namely the division of powers based on the nature of the tasks of different types and functions which give rise to various kinds of institutions within a country (legislative, executive and judicial).

Almost all countries in the world apply the concept of Trias Politica from Montesquieu. What about the country of Indonesia? To see whether the Indonesian government system applies the concept of trias politica or not, it can be seen in the Indonesian state constitution, namely the 194 Constitution of the Republic of Indonesia. , that is both legislative, executive, and judiciary into state institutions or government agencies.

It should be understood that the Indonesian state constitution has been amended. Amendment is the process of changing the provisions of a regulation, either in the form of adding, subtracting or removing certain regulations. The amendments to the 1945 Constitution of the Republic of Indonesia have been amended four times, namely:

  1. The first amendment was carried out on 14 October 1999–21 October 1999 and was determined through the MPR General Session.
  2. The second amendment was carried out on 7 August 2000–18 August 2000 and was adopted at the MPR Annual Session.
  3. The third amendment was implemented on 1 November 2001–9 November 2001 and was determined at the MPR Annual Session.
  4. The fourth amendment was implemented on 1 August 2002–11 August 2002 and was adopted at the MPR Annual Session.

In connection with the amendments to the Constitution of the Republic of Indonesia, the division of powers over state institutions or government agencies in Indonesia has also undergone changes. Theoretically, these changes will at least bring about structural changes and state administration mechanisms.

Implicitly, both before and after the amendment to the 1945 Constitution, the concept of Montesquieu’s trias politica was applied in the system of government of the Republic of Indonesia, but the application of the concept was not absolute . executive, and judiciary.

The division of powers based on state functions in the system of government of the Republic of Indonesia based on the 1945 Constitution before the amendment turned out to be not only the legislature (MPR and DPR), the executive (president) and the judiciary (MA). However, apart from these three functions, they are still divided into consultative powers (DPA) and examining powers (BPK).

As for the division of powers based on state functions in the system of government of the Republic of Indonesia based on the 1945 Constitution after the amendment, it turns out that it is not only legislative (MPR, DPR and DPD), executive (President) and judiciary (MA and MK), but is still divided into the Examinative Authority (BPK).

Conclusion

The results of a comparative study regarding the application of the concept of trias politica in the system of government of the Republic of Indonesia on the 1945 Constitution, before and after the amendment, it can be seen that the division of powers based on state functions in the system of government of the Republic of Indonesia based on the 1945 Constitution before the amendment was not only the legislature (MPR and DPR), the executive (president) and the judiciary (MA), but apart from these three functions they are further divided, namely into consultative power (DPA) and examination power (BPK).

As for the division of powers based on state functions in the system of government of the Republic of Indonesia based on the 1945 Constitution after the amendment, it turns out that it is not only legislative (MPR, DPR and DPD), executive (President) and judiciary (MA and MK), but is still divided into the Examinative Authority (BPK).

The division of power from one period to another always changes according to the development of society. Therefore, it is necessary before making changes (amendments) to be discussed and consolidated with due regard to the ius constitutum and ius constituendum , so that they can accommodate any problems that arise.

Regarding changes (amendments) in Indonesia, there have been four changes in a span of four years, namely from 1999 to 2002; short span of time and there is talk of a fifth change. If this is true, the substance of the change should be adapted to the constitutional legal culture that is in accordance with the Indonesian nation.

Legal basis

  • The 1945 Constitution of the Republic of Indonesia .