The understanding of constitutional law – Indonesia is a country of law, all the behavior of Indonesians is regulated by law. Law is closely related to justice. There are even people who think that law should be combined with justice in order to have the true meaning of law. Only through a fair rule of law can society live peacefully towards happiness.
The essence of law is to create fair rules in society. Law aims to create a fair rule for the life of the community as it is dreamed of. Law contains the demands of justice. Every rule that affects human behavior or living conditions is expected to reflect a sense of justice.
In the olden days, the term “National Constitutional Theory” was rarely mentioned, especially in lectures and academic forums. Constitutional law studied by students is constitutional law in a narrow sense. This was influenced by the nature of the New Order government which tried to defend the political order at that time, which actually benefited the rulers in maintaining their power. The ideas about the UUD both directly and indirectly eventually become hegemonic or shackled.
At that time, the political order based on the National Constitutional Law was only the implementation of Pancasila and the Constitution (1945 Constitution), upholding the single precept of Pancasila and applying P4 (Pedoman Hidup dan Pengamalan Pancasila). As a result, the debate on the theoretical side of constitutional law is rejected, even silenced, because it is considered an “anti-establishment” idea and tends to disrupt national stability.
Constitutional law can also be distinguished between general constitutional law and positive constitutional law. Constitutional Law generally deals with generally accepted principles and principles, whereas positive Constitutional Law only deals with Constitutional Law that applies to a specific place and time. Positive constitutional law such as Indonesia’s Constitutional Law, the United Kingdom’s Constitutional Law, or the United States’ Constitutional Law currently in force in each country.
It was only after the 1998 reform that the dominant development in the study of Constitutional Law began. The birth of members of Constitutional Law also influenced this development. It is through the change of Pancasila that then causes changes and reforms in the structure/elements of the country. The birth of new national institutions is nothing but the creation of a better and more democratic Indonesia.
Talking about the constitution, many people do not understand what is meant by the Constitution. That is why this article was written to make Reader understand what the Constitution of the Nation means in general and according to experts
Understanding of Constitutional Law in General
Constitutional Law is essentially a law that regulates the administration of power in a country and all aspects related to the organization of the country. In this context, various terms are known in a constitutional law environment, namely:
In the Netherlands, the term “staatsrech ” is often used , which is divided into staatsrecht in ruimere zin (in a broad sense). Staatsrecht in ruimere zin is State Law. While staatsrecht in engere zin is the law that separates the law of statecraft from the constitution of the country, the law of state administration or the law of government administration.
In England, in general, the term “Constitutional Law” is used , the use of this term is based on the reason that the constitutional element is more prominent.
In France, the term “Droit Constitutionnel” is used to distinguish “Droit Administrative”, where the starting point is to distinguish between Constitutional Law and state administrative law.
Whereas in Germany, the term Verfassungsrecht is used : Constitutional Law and Verfassungsrecht : State Administrative Law.
The term Hukum Tata Negara comes from the words “Law”, “Tata” and “Negara”, which discusses the problem of state management. Law is a set of rules or rules for behaving or behaving, and when violated there will be punishment.
Order refers to the word order, ie order which can also be translated as order. Constitutional Law refers to the system of state structure, which includes arrangements about the structure of the state and the content of state standards. In other words, the concept of constitutional law is a science that studies the structure of the state, the mechanism of relationships between organs or the structure of the state, and the relationship between the structure of the state and its citizens.
Understanding Constitutional Law According to Experts
Below are some definitions of Constitutional Law according to experts, which consist of:
1. According to Van Vollenhoven
The Constitutional Law is the Constitutional Law that regulates all superior legal societies and subordinate legal societies according to their levels and determines the scope of their respective societies and finally determines the bodies to carry out the tasks of those who have authority within the legal society, as well as determine the arrangement and authority of those bodies.
2. According to Scholten
Constitutional Law is the law that governs organizations, not states. The conclusion is that the national organization deals with the position of organs in the country, their relationship, rights and duties and responsibilities.
3. According to Van der Pot
Constitutional Law is a set of provisions that determine the necessary organs and the powers of each organ, as well as their relationship with each other and with other individuals.
In addition, Van der Pot also explained that the Constitutional Law is a set of provisions that determine the necessary organs, the authority of each organ, the relationship between one institution and another, and the relationship between those organs and individuals in country.
4. According to Apeldoorn
Constitutional law in a narrow sense is identical to the term constitutional law in a narrow sense, as opposed to constitutional law in a broad sense, which includes constitutional law and the administrative law of the country itself.
5. According to Paton George Whitecross
Constitutional Law is the law that regulates the state apparatus, its duties, powers, and the relationship between state aids. In his book “Textbook of Jurisprudence” he formulated that constitutional law regulates the basic issue of the distribution of legal powers and duties of state bodies.
6. According to Maurice Duverger
Constitutional Law is part of private law, which regulates the organization and political duties of state institutions.
7. According to Kranenburg
The constitution contains the laws contained in the constitution that relate to the composition of the country’s law.
8. According to Utrecht
Constitutional Law examines the social duties and powers of government officials.
9. According to Kusumadi Pudjosewojo
Constitutional Law is the law that regulates the form of government (commonwealth or federation) and the form of government (kingdom or republic), which determines the upper and lower legal society and its level (hierarchy), which also legitimizes the territory and environment of the country and society.
The legal community and finally shows the equipment of the legal community (with the authority of the ruler) and also the composition (consisting of one person or several people), power, the level of balance between the equipment.
10. According to JR Stellinga
Constitutional Law is the law that regulates the powers and obligations of the state apparatus, and regulates the rights and obligations of citizens.
11. According to J. Apeldoorn
The state in the sense of a ruler is the existence of people in power in a federation of people living in a region.
12. According to Logemann
Constitutional Law is the law that governs the organization of the state. According to Prof. Logemann, a social organization that aims to use its power to organize and organize something in society.
13. According to Mac Iver
According to Mac Iver, the state as a political organization should be separated from “society”. The state is a political organization that exists in society, but the state is not a form of society. The state is an organization in society, namely organization-kapstok .
14. According to Wade and Phillips
In his book titled “Constitutional law” which appeared in 1936. Constitutional Law is the law that regulates the tools of the state, their duties and the relationship between the tools of the state.
15. According to AV Dicey
In his book ” An introduction to the study of the law of the constitution”, dicey says “as the term is used in England, appears to include all rules that directly or indirectly affect the distribution or exercise of the sovereign power in the state” . The state is all laws (written in “all rules”) based on the separation of powers within the state and the implementation of the supreme law of the state.
16. According to Austin
According to Austin, He said that constitutional law defines certain people or groups of people who hold a special power ( Sovereign power ) in the country.
17. According to Prof. M.Ph. Kleinjets
The Constitutional Law of the Dutch East Indies includes legal rules related to government (Inrichting Dutch East Indies) , tools of state power (Demet Overhead Gezag) , government, authority (Bevoegdheden) and power relations ( Onderlinge Machtsverhuord) between amenities.
18. According to Prof. ANCHOCIEZT
Constitutional law is a legal norm in which government officials and their powers have clear powers and limitations to regulate the apparatus of the state (regulate all aspects of community life), individuals including some who are in the state.
19. According to Prins
Constitutional law studies the fundamental issues that form the basis of the State and directly concern every citizen. Administrative law focuses on technical problems that until now have been ignored by us and are only important to professionals.
20. According to Muh Kusnardi and Harmaily Ibrahim
Furthermore, Muh Kusnardi and Harmaily Ibrahim in the introduction to Indonesian constitutional law state that constitutional law can be understood as a set of legal norms that regulate the administration of the state, the relationship of the apparatus with the state, the state vertically and horizontally, as well as the position of citizens and their basic rights.
Kusnardi and Ibrahim explained that citizens are an important part of a country. Therefore, constitutional law must contain the principles of the rule of law and the conditions of citizenship as well as the protection of civil rights (Human Rights Protection).
Purpose of Constitutional Law
The state is a large organization in which there is a government and people. Between the two there is power that regulates the activities of a country. The formation of the Constitutional Law is also not arbitrary but based on the purpose of the Constitutional Law as follows:
- Describe the differences in the content of the 1945 Constitution after its changes and additions.
- Realize and clearly understand his rights and obligations as a subject of the Constitution, in accordance with the 1945 Constitution.
- Provide understanding support for beginners to gain extensive knowledge related to constitutional law of a country.
- Familiarize yourself with the theory and implementation of Constitutional Law in Indonesia for the entire Indonesian community.
- Support various scientific studies that may continue to develop related to the Constitution.
When the final settlement plan is done perfectly, the management of the national administration is always compact. If all stakeholders are able to carry out their duties honestly, the KKN action will not happen and the budget will be absorbed on time.
There will be no more crying and laughing when a series of laws are implemented and well understood by the stakeholders. Obeying the rules will bring peace, not only in the country, but also to the rest of the world.
Fundamentals of Constitutional Law
1. The basis of Pancasila
The first basis of the Constitution is Pancasila. As a national policy, Pancasila must be implemented and reflected in all government actions and decisions. As for the law, pancasila is a source of substantive law, where every content of legislation cannot conflict with the morals contained in pancasila.
The basis of Pancasila is stated in the Preamble of the 1945 Constitution, namely the unity of the nation, social justice for all Indonesians, a sovereign nation state, and a nation based on faith in God Almighty who is just and civilized.
2. Fundamentals of the Rule of Law
The following principles of constitutional law are the rule of law; Indonesia is a country of law. Therefore, all political attitudes and actions of the country and all citizens must be based on and in accordance with the rule of law.
In a country governed by the rule of law, the law is the highest governing body of the state. Regarding the concept of the rule of law, there are two concepts related to it, namely Rechtstaats and Rule of Law.
In short, the Rechstaat is the recognition and protection of human rights based on the principle of freedom and equality. Especially for the rule of law, this concept is based on the common law judicial system , namely judgment or case law .
3. Fundamentals of People’s Sovereignty and Democracy
The third basis of the Constitution is the sovereignty of the people and democracy. Sovereignty means supreme authority over a territory. In other words, people’s sovereignty is the highest power in the hands of the people. Therefore, in carrying out its functions, the government must adapt to the wishes of the community.
Furthermore, the question of democracy cannot be separated from the rule of law. Why? Because, in a democratic government, the people are in power; from the people, for the people and by the people.
4. Foundation of the Union State
The fourth basis of Constitutional Law is the unitary state. The unitary state can be understood as the supreme power of a country in the hands of the central government. This unitary state is the concept of state form.
The Union State of the Republic of Indonesia is maintained by giving the widest possible autonomy to the regions. With the aim that the regions develop according to their potential and wealth with the encouragement and support of the central government.
5. Basics of Power Distribution in Checks and Balances
The last basis of the Constitutional Law is the separation of powers. The division or separation of power can be interpreted as the division of power into several parts. The basis of checks and balances itself is a basis that requires legislative, executive, and judicial powers to be equal and supervise each other.
This decentralization is done to avoid the arbitrary actions of the rulers and to better guarantee the freedom and rights of the people. The division of power in Indonesia includes DPR, MPR, DPD, BPK, President and Vice President, MA, MK, KY as well as other organizations that have the authority to be regulated in the 1945 Constitution and other organizations determined by law.