Constitution | Muchamad Ali Safa'at

CONSTITUTION
https://safaat.lecture.ub.ac.id

CONSTITUTION AND SOUVERIGNTY OF
THE PEOPLE
PEOPLE

SOCIAL CONTRACT

Constituent power

General Agreement, Basic Law

Constitution
The three ele e t s of the ge eral agree e t:
1. the general goals of society or general acceptance of the same philosophy of
government.
2. the rule of law as the basis of government.
3. the form of institutions and procedures.

SUPREMACY OF THE CONSTITUTION

People

Constitution

Citizen

Daily life as a Nation and State

State Organs

Rules and Regulations

State and Government Administration

THE FUNCTION OF THE CONSTITUTION
• A NATIONAL SYMBOL
Symbol of Unity
Majesty of the Nation
Center of Ceremony

• CIVIL RELIGION
Tool of political, economic, and social control
Tool of political, economic, and social engineering
and reform

THE SUBSTANCE OF THE
CONSTITUTION
SRI SOEMANTRI
• Human Rights;
• The structure of state organization;
• Limitation and distribution of state organs
authority.

BAGIR MANAN
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Basic principles on human rights protection;

Basic structure of state organization;
Basic Limitation of state authority;
Identity of the state;

SUBSTANCES
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The goal of the state;
Basic regulations of the state;
Human Rights;

Constitutional Rights;
Position, Authority, election/appointment of the state
organs;
Mechanism on state and government administration
(executive, law creating, judiciary);
People participation Mechanism (General Election).
State symbols and identity;
Territory of the state.
Mechanism of creating or amending the constitution .

MODERN CONSTITUTIONALISM
CJ Bax dan van der Tang:
1. A state must be founded upon law. Power exercised
within state should conform to definite legal rules and
procedures.
2. Institutional structure of gov. Should ensure that power
resides with, or is divided among, different branches
which mutually control their exercise power and which
are obliged to co-operate.
3. The relationship between the government and the

individual members of society should be regulated in
su h a er that it leaves the latter s asi rights a d
freedoms unimpaired.

MODERN CONSTITUTIONALISM
• By creating basic principles of justice and
individual rights policed by court who
independent of government.
• By splitting up power between different
government bodies to ensure that no one person
has too much power.
• By adopting representative institutions of
government that chosen and can be remove by
the people.
• By providing for direct participation by the people
in the process of government decision-making.

ARISTOTELES
Type of
Constitution

Good or True
Form

Bad or Perverted
Form

Government of One

Monarchy or Royalty

Tyranny or Despotism

Government of the Few

Aristocracy

Oligarchy

Government of the Many

Polity

Democracy

Modern Classification,
A.V. Dicey
• The nature of the state to which the
constitution applies;
• The nature of the constitution itself;
• The nature of the legislature;
• The nature of the executive;
• The nature of the judiciary

The nature of state to which the
constitution applies
Unitary
 State organized under a single
central gov.
Supreme legislative authority by one

central power (dicey).

Federal
 a political contrivance to reconcile
national unity and power with the
ai te a e of state rights .
Characteristic:
 the supremacy of the constitution.
Distribution of power between the
federal state and co-ordinate state
forming it.
Supreme authority to settle any
dispute which may arise between the
federal and state authorities.

 Centralized
 Localized/
Decentralized

The Nature of The Constitution

• Unwritten
grown up on the basis
of custom.
• Written
In the form of a
document which has
special sanctity

•Documentary
•Non-documentary

The Nature of the Constitution
Whether the process of co stitutio al lawmaking is or is not identical with the process of
ordinary law- aki g.
Flexible
Constitution can be altered or amended without
special machinary.
Rigid
Require special procedure for its alteration of
amendment.

THE NATURE LEGISLATURE
1. Electoral System, by which voters
choose the members of legislature.
 Suffrage
a. Adult suffrage;
b. Qualified adult suffrage

 Kind of Constituency
a. Multi-member contituency
b. Single-member constituency

THE NATURE OF LEGISLATURE
2. Types of Second Chamber
Election
a. Elective
b. Non-elective
c. Partly elective

Strenghtness

a. Strong bicameral
b. Soft bicameral

THE NATURE OF THE EXECUTIVE
• Parliamentary Executive
• Non Parliamentary Executive

THE NATURE OF THE JUDICIARY
• Whether subject to Rule of Law or under
Administrative Law.
• Whether centralized or decentralized judiciary.