1. RULE OF LAW AND CONSTITUTION
Aloysius Prasetya
Lecture-7

2. 1.RULE OF LAW: Definition
The rule of law is the legal principle that law should govern a nation, as opposed to arbitrary decisions by individual government officials.
It primarily refers to the influence and authority of law within society, particularly as a constraint upon behavior, including behavior of government officials.
The phrase can be traced back to 16th century England, and it was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern".

3. Rule of law
Rule of law implies that every citizen is subject to the law, including law makers themselves.
In this sense, it stands in contrast to an autocracy, collective leadership, dictatorship, or oligarchy where the rulers are held above the law.
Lack of the rule of law can be found in democracies and dictatorships, and can happen because of neglect or ignorance of the law, corruption, or lack of corrective mechanisms for administrative abuse, such as an independent judiciary with a rule-of-law culture, a practical right to petition for redress of grievances, or elections.

4. Rule of law
It is a conception that the whole system of the state’s power is regulated by law, so that all the components of society, the government, and the state uphold the supremacy of law.
In Indonesia, being an ex-colony of the Netherlands, this notion of the rule of law means:
The law must serve justice, so that the enactment of laws aims at fulfilling of what is just, rather than just to limit the powers.
This point is strongly emphasized in the Preamble of the 1945 Constitution which is an embodiment of the consensus of the founding fathers of Indonesia.

5. Positive law Every state has 2 types of law:
Constitutional
Ordinary
Constitutional law – governs the state, and the state is governed by it. It consists of:
Written or unwritten constitution – “basic law”
Accepted interpretations of the constitution
Its main function is to bind the rulers by a set of rules.
Rule of law implies a law-based state.

6. Positive law
The relationship between governance, rule of law and democracy:
No good governance without accountability
No accountability without rule of law
No rule of law without electoral democracy.
Rule of law and democracy
Democracy’s dilemma:
How to enable the state to act in the interests of the people while protecting the people from the state
Rule of law helps resolve the dilemma.

7. Positive law
The implementation of “the rule of law” in Indonesia aims not just at limiting the power of the ruler, but to enact laws which fulfil the sense of justice.
Furthermore, institutions have been created to effectively enforce the law.
The institutions include:
Police
Attorney
Commission for corruption eradication
Judiciary

8. 2.1.Meaning of Constitution
The creation of a state is based on the consensus of its founders. This consensus is expressed in the constitution.
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is.
When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution; if they are written down in a single comprehensive document, it is said to embody a codified constitution.

9. Constitution
• A constitution is usually broader than “basic laws”. • From a political aspect, a constitution is understood as an agreement about the submission of power to a higher authority, or a social contract. • From a sociological aspect, a constitution is the agreement between individuals upon the creation of an organization as an umbrella for the protection of individual lives within a society. So, the “basic laws” is only one aspect of the meaning of constitution, i.e. its juridical aspect. • From a juridical aspect, a constitution is a written agreement containing the purpose and the regulations to be applied to all the parties in agreement.

10. 2.2.The Purpose of Constitution
A constitution serves the purpose of: 1.Separating power from the power holder 2.Limiting the scope of power 3.Controlling the power holder in the execution of power. From the perspective of the rule of law, a constitution is the basis of legitimacy for the authority of the individual who holds power as a ruler. A written attestation from the constituents is needed by the power holder to exert his power. Further, the power that is conferred to the ruler is set within clearly delineated limits by the constitution. Thirdly, the constitution also contains rulings on how the power should be executed to avert any abuse of power.

11. 2.3.Constitution and Democracy.
In the perspective of democracy, a constitution fulfills the function of:
A declaration of the founding of a state purporting its vision and mission.
A set of written basic laws as agreed upon by its founders.
A chart of power division in avoidance of centralization.
A regulation limiting the powers following the division.
A guarantee towards human rights implementation.
Thus, a constitution always refers to democracy. It goes along the principles of democracy, in the sense that:
The state’s sovereignty is in the hands of the people.
The rights of minorities are fully safeguarded.
There are limits not to be trespassed in the execution of power.

12. 3.RULE OF LAW AND CONSTITUTION IN INDONESIA
Constitution is a logical consequence of the rule of law. In that perspective a constitution is the basic foundation laid for all laws. This is the basic function of the UUD ‘45.
However, beyond its juridical function, UUD ‘45 can be assessed from the political, formal juridical, sociological and ideological perspectives. It contains the Indonesian state’s philosophy, vision and mission statement in the Preamble, while the division of powers and the guarantee of human rights implementation are explained in Body of the UUD ’45 Constitution.
Thus, UUD ‘45 is charateristically distinct from other con-stitutions in that it contains the philosophy of the state, the vision and mission of the state’s foundation, and the underlying epistemological and anthropological principles.

13. Rule of law and Constitution in Indonesia
Apart from being a basic law, the UUD ‘45 conveys further an ideological legitimacy for the founding of the Indonesian state. This ideology is Pancasila, a characteristically Indo-sian perspective in regard to other world ideologies. This legitimizes the sovereignty that Indonesia enjoys. On the other hand, Pancasila must remain unchanged, as it is the foundation set for the creation of the Indonesia state. Thus, Pancasila and UUD ‘45 form an inseparable unity. The epistemological and anthropological perspective is laid in the Preamble and from this perpective of the human dignity the creation of a law-based state becomes a logic-al consequence for the attainment of a just society. In that sense, the understanding and implementation of the “rule of law” in Indonesia is governed by this ethical, ideological and anthropolocial vision of Pancasila.

14. 4.IMPLEMENTATION OF UUD ‘45
An overview of the history of the implementation of UUD ‘45 reveals a significant variation in the adoption of UUD ‘45 as the Constitution of Indonesia.
In certain periods, even, UUD ‘45 was not replaced by another constitution to serve as juridical legitimacy for the regime in power. A number of historical periods may be discerned in the implementation of UUD ‘45.
1.August 18, 1945 – December 27, 1949
The UUD ‘45 was the constitution of the Indonesian state which underwent several adverse political conditions, also due foreign interventions. Decisions were made out of situational expediency which at times went against the injuction of the constitution. Ex.: the creation of the office of Prime Minister held by Sutan Sjahrir.

15. The Implementation of UUD ‘45
2.December 27, 1949 – August 17, 1950
Federal Republic of Indonesia Constitution was the result of the agreement reached by the Dutch-formed states (within the territory of Indonesia) during the Round Table Conference (KMB) held in Den Haag. The formation of the Federal Republic was a maneuver to gain an international recognition of the Indonesian independence, especially from the Dutch governement.
The enactment of the Federal Constitution was meant to be the evidence of the founding of the Federal Republic. After 7 months of independence recognition, efforts were made to reestablish a unitarian republic with a support from the regions. Thus, the Federal Republic was dissolved on August 17, 1945 and Indonesia became unitarian again.

16. The Implementation of UUD ‘45
3.August 17, 1950 – July 5, 1959
The 1950 Interim Indonesian Constitution was the third constitution of Indonesia. The reason for this change was to further limit the authority of the state over the individ-ual. This constitution was liberal and the government was formed in a parliamentary pattern. The power of the pres-ident and vice precident was lessened.
But the result was instability, because parliaments broke up one after another and the economic life became stagn-ant. A Constituent Council was established to draft a new constitution. This council also failed their task, due to controversies on the issue of the Jakarta Charter. Minor-ities opposed the idea of the formation of an Islamic state. The stalemate was resolved through the President’s Decree on July 5, 1950 to readopt the UUD ‘45.

17. The Implementation of UUD ‘45
4.July 5, 1959 – March 12, 1966 Guided democracy
On July 5,1959 President Soekarno issued a decree dis-solving the Constituent Council and declaring a return to the 1945 UUD. He thereby ended a period of parliamentary system, when the President was just a symbol of power, while the real power was in the hands of a Prime Minister.
To solidify his grip, the President declared “guided demo-cracy” as his credo of governance. Putting himself above the law, he instituted several deviant practices (life app-ointment of president, multiple function as an executive, legislative and judicial, and institution of new state offices without legal foundation). Political and economic malaise attained a climax resulting in a coup d’état in 1965 in which he was deposed by General Soeharto.

18. The Implementation of UUD ‘45
5.March 12, 1966 – 1999 Pancasila democracy
For his own purposes President Soeharto reinstated the 1945 UUD. His administration, labelled the New Order, justified its purposive agenda with a motto “a pure and consistent implementation of Pancasila and UUD ‘45” and reserved an exclusive right to interpret the UUD ‘45 and Pancasila.
This exclusivistic reinterpretation of Pancasila and UUD ‘45 entailed large number of deviations in the form of policies which tended to be more capitalistic and corrupt.
However, stipulations of the UUD ‘45 about the embodi-ments of the state power were strictly obeyed and diligently executed by the New Order.

19. The Implementation of UUD ‘45
present Amendments to UUD ‘45
During the reformation era the 1945 UUD underwent four instances of amendment. The most significant change is in the ideology followed by the conceptors of amendment.
Following the amendments, the UUD ‘45 dons a liberal style with a strong emphasis on the concept of democracy, an individualistic tendency, and the adoption of free market economy.
The government system remains presidential, but the president and vice-president are to be elected directly by the people. New state institutions are created, such as the Constitutional Court, Regional Representative Assembly, and Judicial Court.