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The Constitution of the Republic of Indonesia is usually referred to as the 1945 Constitution. This partly is because the constitution was drafted and adopted in 1945 when the Republic was being established, and another to distinguish it from other constitutions which were introduced in free Indonesia.
Furthermore, the articles of the 1945 Constitution spell out the ideals and the goals for which independence was proclaimed on August 17, 1945, and defended thereafter.
It reflects the spirit and vigor of the time when the constitution was shaped. It was inspired by the urge for unity and for the common goals and democracy built upon the age-old Indonesian concepts of gotong royong (mutual assistance), deliberations of representatives (musyawarah) and consensus (mufakat).
THE MAIN MATERIALS OF THE AMENDMENTS TO THE 1945 CONSTITUTION
Since the reformation era, the 1945 Constitution has experienced some amendments, additions, and completion for four times in the annual session of 1999, 2000, 2001 and 2002. All the amendments were based on topics covering the following issues:
1. Sovereignty
The Constitution, the 1945 Constitution originally adhered an ideology that the sovereignty was vested in the people executed fully by the People's Consultative Assembly (MPR). It adhered an ideology of the People's Consultative Assembly supremacy, making the MPR be a state institution that had unlimited authority because it became an institution of the sovereignty embodiment of all Indonesian people. Its huge and unlimited power caused the People's Consultative Assembly was unable to be controlled by any other state institutions. Accordingly, the MPR became a super body state institution that in the structure of the matters pertaining to form of the government of the Republic of Indonesia was positioned as the highest state institution. To keep abreast to the changing era, the original 1945 Constitution views was no longer conforming to democracy ideology that required the implementation of checks and balances system among intra-state institutions. For that, its decree of the Article 2 section (1) were converted to the sovereignty is vested in the people and executed according to the constitution.
2. The Structure of the Membership Authority of the People's Consultative Assembly
Before the amendment, the structure of the membership of the People's Consultative Assembly consisted of member of the House of Representatives (DPR) including appointed members of the Indonesian Military/Police, the appointed Regional Delegates (RD), and Group and Delegates (DG). The members of the HR were elected in the General Election, while the RD and DG were appointed. The appointment of some members of the MPR was considered not conforming to with the teaching and spirit of democracy, therefore the formulation was changed by conforming that all members of the MPR have to be chosen by the people through general election. With this amendment, the structure of the membership of the MPR consists of the HR members and the Regional Representatives' Council members, a new representative institution in the structure of the matters pertaining to form of government of the Republic of Indonesia.
The MPR does no longer become the state institution having huge authority; the People's Consultative Assembly is no longer the highest state institution, so that its position makes it be equal with other state institutions.
3. The Authority of the President
The 1945 Constitution adheres presidential government system. Either in theoretic and practice of the matters pertaining to form of government in countries following the presidential government system by this constitution, the president has such a quite big and important power and role. So does in Indonesia. Therefore, it was logical that there were quite many materials related to the Presidential authority in the 1945 Constitution that spread over in various articles and sections, especially concerning his power begun from declaring war until granting abolition.
4. Direct Election of the President and the Vice-President by the People
Since the establishment of the Republic of Indonesia, the election of president and vice-president had been executed by the MPR by an indirect of representative mechanism. In accordance with the spirit of democracy that requiring the people are being given the right to elect the president and vice-president directly, so the current election system by the MPR has to be changed to the direct election system by the people.
If the conditions of the first round general election are not fulfilled, then the second round will be executed to appoint a candidate pair who has the majority vote from the first and second ranks. The couple that has the majority vote will be inaugurated as the president and vice-president.
5. The Term of Office of the President and Vice-President
Before having been amended, the formulation of the term of office of the president and vice-president in the 1945 Constitution was not decisive or concrete to arrange the frequency of the term. In consequence, it opened chance for more than one interpretation.
The amended 1945 Constitution sets that the president and vice-president hold the fixed term of five years and can be reelected for another term. It means that an Indonesian citizen is only being able to be voted for the president and/or vice president for 10 years consecutively.
6. The Discharge of the President and Vice-President on Posts
Prior, there was no decree in the 1945 Constitution which arranged the discharge of the president and/or vice-president from their offices. The constitution only stipulated a decree on the accountability of the president before the extraordinary session of the MPR based on the invitation of the DPR. It is executed when the DPR considers the president is really violating the basic state guidelines or guidelines of state policy.
Now the amended 1945 Constitution embodies casual factors and procedures of discharging the president and/or vice-president from their offices.
7. The replacement of the President amid the Term by the Vice-President
According to the amended 1945 Constitution, the position of the Vice-President is to assist the President in discharging his/her duties. That position makes the Vice-President automatically shall replace the president until the end of his/her term if the president dies, resigns, and is discharged, or unable to discharge his/her duties during his/her term of office.
8. The Executor of the Presidential Duties
Although improbable, there remain another possibility of the emergency condition caused by, for example, the President and Vice-President at the same time die, resign, and are discharged, or are unable to discharge their duties of offices during on their terms. In this condition, prompt decision based on a strong law is needed.
Ancitipating such case the amended 1945 Constitution stipulates that in case that condition occurred, the executors of the presidential duties are that consisting of three cabinet members namely: the Foreign Affairs Minister, the Home Affairs Minister and the Defense Minister.
9. The formation of the President Advisory Council and the Elimination of the Supreme Advisory Council
The existence of the Council as a state institution, which was equal with the president and had a task to give advice and judgment to the president was viewed as less effective and efficient. It was due to unbinding of the advice and judgment to the president.
Based on that consideration, the amended 1945 Constitution eliminates the existence of the Council. To substitute for it the constitution gives the authority to the President to form the Advisory Council that has the task to give advice and judgment to the President.
10. The State Ministry
As a constitution adhering to the ideology of presidential government system, the amended 1945 Constitution asserts that the state ministers, who are appointed and discharged by him/her, are to assist the President.
11. The Regional Government
The regions are given the freedom and authorities to exploit and manage their natural resources, with the yields emphasized regulates to raise the regional progress and prosperity. The regional autonomy has to be executed and remains within the Unitary State of the Republic of Indonesia.
The newly amended Constitution also regulates the state recognition of and respect for regional administration units, which is special and extraordinary in character.
12. The Regional Representative's Council
The amended 1945 Constitution introduces a new representative institution in the structure of the government of Indonesia. The institution is the Regional Representatives Council as stated in the provisions of the Chapter VIIA concerning the Council.
13. Financial Matters
Concerning with the increase of the awareness of the importance of the state financial management, the original 1945 Constitution was amended to be more details and perfectly managed.
Now, study of constitution draw of the budget that was proposed by the president and then executed together with the HR by taking note of the judgment of the Regional Representatives' Council.
In the new chapter concerning the financial, it was also firmed that there is the tax arrangement and other collection of finance duty that are by force for the state needs, it is arranged in the new amended 1945 Constitution.
14. The Audit Board
In the new provision concerning the Board it is, among others confirmed that the AB as the state institution functions in the field of financial investigation, having the status of a free and independent. The confirmation is viewed as very important, so that the implementation of its duties is not intervened, influenced, or be under the pressure, either by the state institutions or boards or public and individuals.
The amended Constitution stipulates that besides locates in the capital city the Board also has a representative office in each province.
15. The Supreme Court
The amended constitution concerning the justice authority produces two new state institutions: Judicial Commission and Constitutional Court. The formation of those two institutions is aimed at strengthening the implementation of the justice authority to achieve the expected results to upholding the law and justice.
16. The Constitutional Court
The existence of the Court is viewed very important to implement the judicature function on cases related to the judicial review, inter-institutional arbitrariness disputes, political party dismissal, and results of the general election.
It is expected to be able to manifest the prompt court in order not to become a prolonged-term case.
The authority of the Court as enacted in the provision of the Article 24C of the 1945 Constitution is to judge in the first level and final, which decision is final.
17. The Judicial Commission
The judicial commission as a new institution is formed related to the implementation of the justice authority. With the formation of the Judicial Commission it is expected that the quality of the supreme judges and judges improve, and in turn it will improve the judicial process and judicial decision in the Commission as the highest judicial institution in the Indonesia judicial structure, except certain cases taken into court by the Commission.
18. Human Rights
Along with the development of ideas concerning Human Rights, it is necessary to improve the formulation of the rights in the 1945 Constitution. The implementation of it is the inclusion of Human Rights in a separated chapter of the amended Constitution.
Concerning with the exercise of human rights there has been a non-retroactive principle confirming that the violation on human rights shall not to be charged on the ground of the retroactive law.
The retroactive principle shall be operative in the context of protecting human rights themselves.
In the provision concerning human rights it is also asserted that the responsibility to implement protection, development, upholding, and fulfilling of human rights is vested on the state, mainly the government.
19. The State Defense and Security
The 1945 Constitution stipulates that defense and security is carried out through total people's defense and security system by two state organs, namely the Indonesian Nation Army and the Indonesian Police, as the main force, and the Indonesian people as the supporting force. This formulation becomes a specific characteristic of the Indonesian national defense and security since it places the people to take part actively in the system.
20. Educations and Culture
It was formerly formulated in the 1945 Constitution that each citizen has the right to obtain education and the right to take basic education. So it becomes the government obligation to pay for each citizen acquisition of his/her elementary education.
After having been amended, the formulation of the provisions of the national education objectives improved by inserting the formulation of "improving faithfulness and devotation," "nobleness of character" and "advance the intellectual life of the nation". The inclusion of those three matters constitutes the realization of the collective awareness of the Indonesian nation as a religious nation, and nation having the wish to realize the national grandeur and noble civilization.
The national education budget prioritize is at least 20 percent of the state budget and the regional budget constitutes the answer to the reality that most part of the human resources belong to lower standards of education.
21. National Economies and Social Welfare
By examining carefully the dynamic of national economy and development of the global economy, formulation concerning the national economy contained in Chapter XIV Social Welfare, underwent some improvements by constitutional amendment to become Chapter XIV National Economy and Social Welfare. The change of the title has been viewed appropriate considering that the provisions encompass economy and social welfare.
Beside maintaining the formulation of the existing provision of Article 33, the amended 1945 Constitution inserted into it formulation about the national economy that shall be managed based on economic democracy with the principles of common endeavor, efficiency, fairness, persistence, friendly environmental vision, independence, and by maintaining the balanced proportion between the progress and the national economic entity.
22. The State Attributes
Before the amendment, the state attributes mentioned in the 1945 Constitution included only the State Flag (Article 35) and Indonesia Language as the state language (Article 36). Having been amended, the 1945 Constitution encompasses the "Garuda Pancasila" as the state symbol with the slogan "Bhineka Tunggal Ika" (Unity in Diversity) in Article 36A, and "Indonesia Raya" as the National anthem (the Article 36B).
23. The Amendment of the Constitution
One of the provisions considered important to be regulated in a constitution is a matter concerning amendment to the constitution itself. It aims that the next generations remain to have an opportunity and poses legal foundation to amend it to keep abreast with the changing era.
24. Transitional Provisions
The provision concerning the transitional provisions in the 1945 Constitution consists of 3 (three) articles aimed at regulating the transitional enforcement from ius constitutem (positive law in force) to ius constituendum (new law replaces it)
The transitional provisions are needed because each constitutional amendment (in the wider aspect of law amendment) will cause the transitional situation of the old constitution to the new one with the legal norms having been changing. The transitional provision is proportional, transitional, or interim in character.
In the transitional provisions embodied in the 1945 Constitution it is said that all existing provisions remain in force before being amended according to the Constitution. In addition is asserted that all existing state institutions remain functioning before being amended according to this Constitution.
25. Additional Provisions
The additional provision consists of 2 (two) articles that govern the task of the MPR to carry out judicial review on the materials and legal status of the provisions of the PCA and the PCA in relation with the MPR changing authorities as stipulated in Article 33 of the 1945 Constitution.
The provision of Article 11 Additional Provision asserts that by the enactment of the amendments to the 1945 Constitution, the 1945 Constitution consists of the Preamble and Articles. These provisions terminated the existence of the elucidation of the 1945 Constitution of which, before the 1945 Constitution amended, it was a part of this Constitution.
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