CONSTITUTION

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

CONSTITUTION AND SOUVERIGNTY OF THE PEOPLE

PEOPLE

SOCIAL CONTRACT

Constitution

The three element’s of the general agreement: 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.

Constituent power

General Agreement, Basic Law

SUPREMACY OF THE CONSTITUTION

Constitution People

Citizen State Organs Rules and Regulations

State and Government Administration Daily life as a Nation and State

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

• Human Rights;

• The structure of state organization;

• Limitation and distribution of state organs authority.

SRI SOEMANTRI

BAGIR MANAN

• Basic principles on human rights protection;

• Basic structure of state organization;

• Basic Limitation of state authority;

• Identity of the state;

SUBSTANCES

• 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 such manner that it leaves the latter’s basic rights and 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

• 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

Modern Classification, A.V. Dicey

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 maintenance 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 constitutional law-making is or is not identical with the process of ordinary law-making.”

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.