Constitutional Justice Wahiduddin Adams giving a keynote speech at a webinar by the Center for Research and Legal Consultation of the Sharia and Law Faculty of UIN Sunan Kalijaga Yogyakarta, Tuesday (11/30/2021). Photo by Humas MK/Ifa.

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Tuesday, November 30, 2021 | 15:01 WIB

JAKARTA, Public Relations—Constitutional Justice Wahiduddin Adams gave a keynote speech at a webinar on “Quo Vadis, 5th Amendment to the 1945 Constitution: Pros-Cons of PPHN Revitalization in Indonesia’s Administrative System” on Tuesday afternoon, November 30, 2021 virtually from the Constitutional Court (MK). It was organized by the Center for Studies and Legal Consultation (PSKH) of the Sharia and Law Faculty of State Islamic University (UIN) Sunan Kalijaga, Yogyakarta.

At the beginning of the webinar, he explained the constitutions of a number of counties. The constitution of Ireland and many African countries mention ‘directive principles,’ ‘fundamental principles,’ or simply ‘principles,’ which is usually followed by ‘state policy’ or ‘social policy.’

“Generally, the constitutions in those countries regulates policy principles that the state will take. Directive principles can be interpreted as principles that contain directions. ‘Directive principles’ combined with ‘state policy’ can be interpreted as the state guidelines,” Justice Wahiduddin explained.

Are directive principles synonymous with State Policy Guidelines (GBHN) that applied in Indonesia in the past? Justice Wahiduddin said, they are not, as directive principles are contained in and explained by the norms of the Constitution, while the GBHN is a legal product by the People’s Consultative Assembly (MPR).

“Article 3 of the 1945 Constitution pre-amendment stipulates that the MPR enact the Constitution and the GBHN, but [the GBHN] doesn’t exist anymore. The political and state administration system based on the 1945 Constitution pre-amendment allowed the MPR to give state institutions authority in the form of GBHN because the 1945 Constitution pre-amendment constructed the MPR as the highest state institution and the president as the executor of the MPR’s mandate,” Justice Wahiduddin explained.

Significant Changes

Justice Wahiduddin added that the amendment to the 1945 Constitution in 1999-2002 brought significant changes to the administration system where the MPR is no longer the highest state institution. The administration system and the relation between state institutions focus on the mechanism of checks and balances. Article 1 paragraph (2) of the 1945 Constitution states that sovereignty is vested in the hands of the people and is implemented according to the Constitution. One of the interpretations of this constitutional provision is that no one person or institution has a higher position than the Constitution.

“The Constitution is the highest law and all are subject to the rules of the game of the Constitution. The 1945 Constitution is the highest in our legal hierarchy,” Justice Wahiduddin said.

May Be Equated

Justice Wahiduddin believes the 1945 Constitution contains the state guidelines or may be equated to directive principles, although the composition and content are not arranged in a special section but are enshrined in the Preamble and body of the 1945 Constitution.

“The fourth paragraph of the Preamble to the 1945 Constitution clearly states that the duties of the Government of the Republic of Indonesia are to protect the entire Indonesian nation and the entire homeland of Indonesia, promote public welfare, educate the nation's life, participate in the world order based on freedom, eternal peace, and social justice,” he explained.

Such an arrangement, he added, is very general and requires interpretation or elaboration. However, studies that examine the duties and functions of the preamble to various constitutions in the world concluded that one of the things usually included in the preamble is a statement on the goals of the state. This function often appears in countries that recognize civil law.

Meanwhile, in the body of the 1945 Constitution, Justice Wahiduddin said, one can find an arrangement that reflects state guidelines, for example, the guarantee of constitutional rights is fully contained in the direction of state policies. Among them, the right to education is a state policy whose scope is completely elaborated. The state must prioritize the education budget of at least 20 percent of the APBN and APBD (state and regional budgets). 

Writer        : Nano Tresna Arfana
Editor        : Nur R.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 12/13/2021 13:53 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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