Academic journal article Journal of Legal, Ethical and Regulatory Issues

Analysis of the Indonesian Presidential System Based on the 1945 Constitution of the Republic of Indonesia

Academic journal article Journal of Legal, Ethical and Regulatory Issues

Analysis of the Indonesian Presidential System Based on the 1945 Constitution of the Republic of Indonesia

Article excerpt

INTRODUCTION

The doctrine of Separation of Powers or Trias Politica requires equal standing between the executive, the legislative and the judiciary. The system of government in a country that provides for this doctrine in its constitution is called presidential government system whereby the three branches of government hold equal powers and can check on one another to prevent one branch from becoming supreme. Numerous contradicting viewpoints regarding the type of government system implied in the 1945 Constitution have emerged over the past decades among politicians and academics. Some claim that the Indonesian government system is presidential while other believes it is parliamentary. This is due to the fact that 1945 Constitution contains both presidential and parliamentary elements according to Moh. Mohammad (1998), a former Chief Justice of the Indonesian Constitutional Court (2008-2013). The problems that arise in the Indonesian presidential government system can be seen through the relations between the President and the House of Representatives (DPR) as set forth in the 1945 Constitution in the period between independence and the Reformation Era. Prior to its amendments, article 4 of the 1945 Constitution states that the powers of the People's Consultative Assembly, the People's Legislative Assembly, and the Supreme Advisory Council are exercised by the president with the assistance of a national committee. This provision shows how dependent the legislative was on the executive. Since the role of the Parliament in dealing with the president was very little and weak, the government system could not be classified as a parliamentary or presidential system of government. The presidential system during the Old Order period was not in accordance with the characteristics of the presidential government system.

The Bases of the Presidential System

In an attempt to deal with issues related the implementation of a pure presidential system in Indonesia based on the 1945 Constitution, this paper uses the theory of Democracy, the Separation of Powers and Checks and Balances, and the theory of government system. A country can be said to democratic when at least the following elements are met: (1) freedom of expression; (2) freedom of association; (3) the right to vote; (4) equal opportunity to be elected or to hold various government or state positions; (5) the right for political activists to campaign for support or votes; (6) the existence of various sources of information; (7) free and fair elections; 8) all agencies tasked with formulating government policy must depend on the government's wishes.

These eight elements show how important the people are in democratic country. Jean Jacques Rousseau argues that the doctrine of volonte generale, as the supreme authority in a country, has two consequences (Rousseau, 1895):

1. The right of the people to replace their ruler as they see fit;

2. The idea that sovereignty is in the hands of the people

The sovereignty of the people based on the concept of Rousseau's volonte generale, manifested by the intermediary of the law, has four characteristics:

3. The people's right to govern and not to be governed is one. This can be seen through law making process and declaring war;

4. Absolute and indivisible sovereignty of the people;

5. Sovereignty may not be given away, sold, pawned or awarded (Muhammad, 1954).

The government system in a country depends on the organization of powers that exist in that country. As argued earlier, presidential system is a government system based on the theory of Trias Politica-a separation of powers or power-sharing idea that imposes limits on government's authority to protect the basic rights of the citizens (Mukthie, 2004). John Locke's idea of separation of powers implies that each of the three branches of the government must be autonomous and distinct from each other (Suri, 1993). This concept is known as the presidential government system applied today in many countries including the United States of America where the separation of powers is a fundamental constitutional principle. …

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