Ilmu Negara #29 | Pembagian Kekuasaan (Bagian Ke-3) #universitasterbuka #belajar #tutorial

Main ideas, concepts, and lessons

• Indonesia’s system is not a strict trias politica (horizontal separation of powers).

  • When drafting the 1945 Constitution, the drafters agreed the Constitution does not adopt the trias politica model that rigidly separates the legislative, executive, and judicial branches.
  • The judicial branch is intended to be independent (free from influence of other branches, especially the government), but other separations—particularly between legislative and executive—are not absolute.

• Power distribution in early constitutional logic (before amendment vs. after amendment).

  • Before amendment (Article 5(1), original wording):
    • Law-making power is described as held by the President, with DPR approval.
    • This creates overlap between the DPR (legislative role) and the President (also legislative role).
  • Theory used: “vertical division of powers,” not horizontal separation.
    • The sovereignty model is realized first through the MPR as the embodiment of the people.
    • From the MPR, power is distributed into institutions:
      • President (executive),
      • DPR (controller/supervisor),
      • Legislative function shared between President and DPR (per the pre-amendment logic).

• After amendments: movement toward stricter separation, especially legislative/executive.

  • Article 5(1) changed: now the DPR holds the power to form laws.
  • Article 20(1): President may submit draft laws to get DPR approval.
  • Article 20 (new provision): President ratifies draft laws into laws.
  • Net effect described:
    • Legislative power is said to have shifted toward the DPR,
    • but the President may still refuse to ratify, treated as a form of veto power.

• If the President has veto-like refusal power, it should be constrained to avoid arbitrariness (proposed safeguards).

  • The speaker suggests limiting the veto by clearer rules, such as:
    • Mandatory ratification if a draft law receives more than 2/3 of DPR members’ votes.
    • Or: allow re-discussion by the DPR, and if the later decision gains more supporting votes than the previous decision, then the President must ratify.
  • Even if not specified, the amendment provisions are described as aiming to separate legislative from executive functions.

• Consequences for constitutional reasoning: difficulties with maintaining “vertical division” once strict separation is adopted.

  • Because the amended Constitution adopts strict separation among legislative, executive, and judicial, the earlier vertical power logic (from MPR to top state institutions) becomes less usable as a consistent constitutional framework.
  • This contributes to the view that the amendment process results in a patchwork constitutional system (as suggested by experts).

• How modern states complicate strict separation (legislature vs. judicial/budget functions).

  • A cited argument (PMO Wahyon) that:
    • In modern states, legislative functions are not always cleanly limited to “making laws.”
    • Indonesia’s DPR both:
      • participates in law-making,
      • and carries out oversight/control questions regarding members and legitimacy (the example given includes “mandate letters/letters of trust,” often handled internally or via special committees).
    • For state budget determination, the executive/government plays the role, but this can cause dissatisfaction/rights violations if done unilaterally—so representatives must participate.
  • Another cited point: the DPR may sometimes lack expertise in law-making compared to specialization by executive implementation bodies.
  • This can cause functional “spillover” where one function may effectively be held by two different bodies.

• A practical “method” to preserve the legislature’s role even when functions expand across institutions.

  • The speaker mentions a proposed approach:
    • (1) The legislative body gives authority to the government to prepare plans for laws.
    • (2) The legislative body determines the main points, while further provisions are delegated to other bodies.

• Further institutional uniqueness in Indonesia: more than three “axes” of power.

  • Citing SF Marbun and Mahfud MD:
    • Indonesia has legislative, executive, and judicial powers, but it is not limited to three axes.
    • Under the 1945 Constitution, power axes include five (described as having equal status as high state institutions):
      1. Legislative: law-making by DPR with the President
      2. Executive: implementation by President
      3. Judicial: by Supreme Court
      4. Consultative: Supreme Advisory Council (citing Article 16)
      5. Auditive: Audit Board
  • Additionally:
    • The MPR is described as (historically/constitutionally) an overarching highest institution.
    • But the speaker notes these roles are no longer fully relevant today (e.g., the Supreme Advisory Council has been abolished; the MPR is no longer the highest in the same way).
    • Constitutional Court is mentioned as an additional key institution.

• Cooperation replaces rigid separation (interdependence among legislative, executive, judicial functions).

  • The speaker describes a model where there is:
    • no rigid separation, but
    • cooperative relationships between branches.
  • Examples (generalized from the explanation):
    • legislative power is not purely DPR,
    • judicial matters may involve other institutions in small ways,
    • executive power may also draft/participate in law-making processes.

• Examples from other countries show trias politica is hard to implement even there.

  • England (as described via Montesquieu):
    • no separation at all in practice;
    • close ties between executive and legislature:
      • Prime Minister and ministers come from the lower house and participate in debates,
      • cabinet depends on maintaining support from the house,
      • Prime Minister can dissolve the house and call elections.
  • United States is mentioned as closest to trias politica, but even there full classical separation is difficult.

• Modern welfare state conditions further weaken classical trias politica.

  • In 19th-century “night watchman state” ideas, separation might fit better (state should mainly protect order; minimal intervention in economy).
  • In the 20th century, especially in developing countries:
    • governments regulate broad social/economic life,
    • welfare state responsibilities expand,
    • executive bodies actively draft policies and laws and participate beyond mere enforcement.
  • Therefore, “trias politica” tends to shift conceptually from separation of powers to distribution of power:
    • assign main functions based on their nature to different bodies,
    • but cooperation remains necessary for effective governance.

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Methodology / “instructions” presented (structured bullet points)

Proposed constraints on a President’s veto-like refusal power

• Treat President’s non-ratification/refusal as a veto-like power.
• Limit it with clear rules, for example:
  • Mandatory ratification if the DPR vote is > 2/3.
  • Or:
    • Let DPR re-discuss the draft.
    • If the second DPR decision obtains more support than before, then the President must ratify.

Approach to preserve legislative supremacy while delegating details

1. Legislative body authorizes the government to create draft law plans.
2. Legislative body sets the core/main points.
3. Further details are handled by other bodies (delegation to executive/implementation institutions).

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Speakers / sources featured (as named in the subtitles)

• Bernard Simamora (speaker/presenter; shown in the intro credits)
• PMO Wahyon (author/source mentioned)
• Sidr il (named as “Sidril” — British scholar referenced)
• SF Marbun (author/source)
• Mahfud MD (author/source)
• Montesquieu (referenced as theoretical/model example)
• Kan (referenced; likely “Kant” but transcribed as “Kan”)
• FTE (referenced; initials/names transcribed ambiguously)
• Fichte (referenced)