SOVEREIGNTY IN A RULE-OF-LAW STATE

Written by : Syarifuddin Paware, S.H.I., M.H.

Discussion of the rule-of-law state cannot be separated from the concept of Rechtsstaat in European states and the Rule of Law in Western states. These two concepts of the state bear similarities to the Indonesian conception, under which the state must have a fundamental law or Constitution to govern itself, both in internal affairs (domestic affairs) and external affairs (foreign affairs), with the purpose of safeguarding its sovereignty. Indonesia, as a proponent of the Rechtsstaat conception, places law as the framework for regulating the conduct of state affairs.

As a sovereign state, Indonesia has fulfilled the elements of statehood both de jure and de facto. Jean Bodin stated that sovereignty is the supreme power to determine the law within a state, which is unitary, original, perpetual, and indivisible. Hence, the concepts of internal sovereignty and external sovereignty came to be recognized.

Territory, government, and the people constitute the internal dimension of sovereignty; these three elements are closely correlated with one another, particularly the government and the people in the administration of the state. Accordingly, there must be a legal basis governing the position of the government and the people within a sovereign state. In the BPUPKI session, the principle of kinship was articulated, demonstrating the importance of a Constitution as the foundation of the state. Furthermore, during the session, the concept of Human Rights (HAM) was regarded as a form of protection that should be guaranteed in the Constitution in order to prevent the possibility of the state becoming a power-based state.

With the guarantee and protection of Human Rights in the 1945 Constitution, it may be said that Indonesia’s constitutional ideal is a constitutional democracy. It is commonly understood that the 1945 Constitution embraces the doctrine of popular sovereignty. This is expressly formulated in Article 1 paragraph (2) of the 1945 Constitution, which provides that sovereignty is vested in the people and exercised according to the Constitution.

Discussion of sovereignty and Indonesia’s constitutional system under the 1945 Constitution cannot be separated from the doctrine of the separation of powers, Trias Politica, associated in this text with Montesquieu and John Locke. The doctrine of Trias Politica concerns the division of state power into three branches, namely the Legislative, Executive, and Judicial branches. Under the 1945 Constitution, the administration of the state is entrusted to state organs such as the People’s Consultative Assembly (MPR), the President, the House of Representatives (DPR), the Regional Representative Council (DPD), the Supreme Audit Agency (BPK), the Supreme Court (MA), and the Constitutional Court (MK).

The President’s constitutional position under Article 5 of the 1945 Constitution includes the power to form laws with the approval of the DPR. This constitutes a manifestation of sovereignty in Indonesia, in which the DPR represents an affirmation of popular sovereignty, namely power from, by, and for the people. Furthermore, with regard to the powers of the executive and legislative branches to create legal products and their derivative regulations, these are exercised in accordance with the form of sovereignty adopted by the Indonesian State, namely popular sovereignty. Citing Hart’s view, there are several reasons supporting the relationship between law and morality, namely power and authority, the influence of morality on law, interpretation, legal criticism, the principle of legality, and justice. The correlation between sovereignty, or power “in the hands of the people,” and law is therefore inseparable from the morality underlying the formation of legal products within a sovereign state.

History of the Theory of Sovereignty

The words daulat and kedaulatan originate from the Arabic word daulah, meaning power. Sovereignty may be understood as the absolute and supreme power residing within a state. Soehino defines sovereignty as supreme power, namely power which, at the final and highest level, has the authority to make decisions. Sovereignty may also have an operational-technical meaning, namely a concept concerning supreme power in the administration of the state; in other words, it concerns what and who makes the final decision in state affairs.

From the outset, theories concerning state power have always been inseparable from the question of who holds state power and from where that power is derived. This is because the state is not an inanimate object capable of moving by itself, but rather an organization administered by a group of people over society for a particular purpose. This view may also be understood to mean that within every state there exists power possessed by the state to impose its will upon its citizens.

In essence, human beings are social beings (zoon politikon). Therefore, human beings possess a desire to live together by forming a state of a totalitarian nature. According to Aristotle, the state is the highest form of social life, and the state is formed naturally. Within such a state there is power over others, accompanied by the authority to make laws. Plato idealized a philosopher as the person who should possess power over the state because only a philosopher was capable of acting wisely.

This line of thought was subsequently adopted by Christian ecclesiastical thinkers, giving rise to the theory of natural law. According to this theory, supreme power essentially originates from God. As Thomas Aquinas stated, natural-law theory is an ethical theory, and natural law is what is referred to as a moral obligation. Thomas maintained that monarchy is the best form of government, headed by a king. The king derives his power from God; in exercising government, the king expects God’s grace as both ruler and servant.

In the seventeenth and eighteenth centuries, the basis of the king’s authority began to change from a divine basis to a worldly one. One of the thinkers who advanced this line of thought was Thomas Hobbes. Hobbes explained that, in the state of nature, human beings lived in a state of chaos. Hobbes described this condition by stating that one human being is a wolf to another (homo homini lupus). Thus, in the state of nature there is no tranquility of life, and fear pervades society; therefore, human beings enter into a covenant to form a state. The formation of the state is intended to protect human life. When the “covenant” is made, all of their natural rights are surrendered to the state, while the state is burdened with no obligations, including any obligation for which it may be held accountable by individuals. Thus, the state is not a partner to the covenant, but rather its product.

Unlike Thomas Hobbes, John Locke explained that in the state of nature, human beings possess equal rights to exercise their natural capacities under peaceful conditions. Therefore, the “state of nature” appears as “a state of peace, good will, mutual assistance, and preservation.” However, this condition changed when human beings came to know money. With the existence of money, there was no longer any natural limit capable of preventing the accumulation of wealth by a small number of people. This accumulation of wealth by a small number of people subsequently gave rise to a state of war (state of war). In such a situation, society could not survive without the formation of a state that guaranteed private property.

The state was established not to create equality or to control the unequal growth of private property, but rather to continue guaranteeing the integrity of private property, even as its extent increasingly differed from one person to another. The property referred to here does not consist only of estates, but also of lives and liberties. Locke referred to these rights as inalienable rights; the state was established precisely to protect these fundamental rights. Thus, all power possessed by the state is derived from delegation by its citizens.

Jean-Jacques Rousseau explained that, in the state of nature, human beings lived innocently and loved themselves spontaneously, without engaging in conflict, in a condition of safety and happiness. In this condition, human beings lived solely to satisfy their personal needs. Ultimately, however, the state of nature could no longer be maintained if individuals were no longer capable of preserving themselves. Therefore, a change in their way of life was necessary, namely by forming a group and joining together with others into a larger group, which ultimately came to be called the State, for the purpose of preserving and protecting individuals and its members. Within this association, each person becomes united in a group while remaining free as an individual. It may be said that each individual surrenders himself and all his power for the common interest, under the supreme interest of the general will (volonté générale), and accepts every member as an inseparable part of the whole. This surrender of power may be described as a social contract; however, if the social contract is violated, each individual returns to his or her natural rights. This was ultimately what Rousseau sought: comprehensive popular sovereignty.

Indonesia adopts the principle of popular sovereignty. The concepts of freedom/equality and popular sovereignty constitute the foundation of democracy. Popular sovereignty means that the people are the holders of the highest power in the state, expressed in the maxim of power from the people, by the people, and for the people. Popular sovereignty in Indonesia is channeled and exercised through constitutional procedures. This demonstrates that Indonesia is a Democratic Rule-of-Law State (democratische Rechtsstaat) and a Democratic State founded upon law (constitutional democracy), which are not separate from one another.

Forms of the Theory of Sovereignty

The Theory of Divine Sovereignty

This theory developed during the Middle Ages, between the fifth and fifteenth centuries. In its development, the theory was closely connected with the emergence of a new religion at the time, namely Christianity, which was subsequently organized into a religious institution, the Church, headed by the Pope. At that time, there were two organizations exercising power:

1. A power organization ruled by a king.
2. A Church power organization headed by the Pope.

These organizations had corresponding institutional apparatuses in exercising power. At the beginning of its development, this new religion faced intense opposition. It was considered contrary to the beliefs prevailing at the time, namely the worship of gods or Pantheism. As a result, its leaders were subjected to violence because they were considered to threaten the position and authority of the king.

As a result of such treatment, the new religion instead continued to develop and its adherents increased, because its followers regarded these circumstances as trials through which they could persevere with fortitude. From that point onward, the Church organization acquired real power and was able to regulate state life, not only in religious matters but often also in worldly affairs. Consequently, two sets of rules often emerged, namely rules issued by the state and the king, so long as the two sets of rules did not conflict with each other.

Their actual dispute did not concern who possessed the highest power or sovereignty, because there was agreement that the highest power or sovereignty belonged to God. The further question, however, was who served as God’s representative on earth, the king or the Pope. On this issue, Thomas Aquinas stated that the Pope represented God on earth; the powers of the king and the Pope were equal, but their duties and spheres of responsibility differed: the king dealt with worldly affairs, while the Pope dealt with religious affairs. As a result of this division of responsibilities, the king felt empowered to do whatever he wished on the grounds that his actions were the will of God. The king did not consider himself accountable to anyone except God; indeed, the king considered himself empowered to determine the faith or religion that his subjects were required to follow.

The Theory of State Sovereignty

Proponents of the theory of state sovereignty maintain that sovereignty does not reside in God. Rather, the state creates law, and therefore everything must submit to the rules established by the state. The state is regarded as an entity that creates legal rules; consequently, the existence of law is reciprocal to the birth of the state, and no law may operate unless it is desired by the state.

This theory of sovereignty was advanced by Georg Jellinek, who stated that law is the embodiment of the will or volition of the state; thus, the state creates law and the state possesses supreme power or sovereignty, and outside the state there is no organ competent to establish law. Leon Duguit, however, expressed a different view, namely that in reality the state itself is subject to law. In response to this differing view, Georg Jellinek defended his position by advancing the doctrine of Selbstbindung, namely the doctrine that the state voluntarily binds itself, or requires itself, to submit to law as the embodiment of its own will. Nevertheless, an objection may still be raised against this doctrine, namely that the doctrine of Staats-Souveränität does not distinguish between the state and its organs. In essence, the state is abstract and therefore exists only as an abstraction, because the state can act only through its organs, namely its government. Accordingly, the doctrine of Selbstbindung does not in fact originate from the state itself, but from its organs, the government, or the individuals exercising power.

The Theory of Popular Sovereignty

Scholars of the natural-law school, following the doctrine of the Monarchomachs, reached a new conclusion, namely that the king’s power is power derived from individuals who surrender their power to the king. Thus, the king’s power is power derived from individuals. Those individuals, in turn, derive their power from natural law.

Natural law therefore constitutes the basis of the king’s power; accordingly, the king’s power is limited by the power of the people, who possess the highest power. The concept of sovereignty subsequently emerged as popular sovereignty, pioneered by J. J. Rousseau. Rousseau further stated that popular sovereignty is, in principle, a particular method or system that fulfills the general will. Thus, the general will is merely an abstract conception, and sovereignty is the general will.

This theory of popular sovereignty was followed by Immanuel Kant, who stated that the purpose of the state is to uphold law and guarantee the freedom of its citizens. Freedom here means freedom within the limits of legislation enacted by society itself through the delegation of power to Parliament. Accordingly, legislation is the embodiment of the people.

Application of the Theory of Sovereignty in Indonesia

In examining and analyzing the theory of sovereignty applied in Indonesia, it is necessary to revisit the substance of the Constitutions that have been in force throughout Indonesian history. The Constitutions that have been in force in Indonesia are as follows:

1. The 1945 Constitution.
2. The 1949 Constitution of the Republic of the United States of Indonesia (RIS Constitution).
3. The 1950 Provisional Constitution.
4. The 1945 Constitution following the Decree of 5 July 1959.
5. The amended 1945 Constitution.

The 1945 Constitution, which was implemented on 17 August 1945, remained in force for only five years, from 17 August 1945 to 26 December 1949. The 1945 Constitution consisted of 27 chapters, 4 articles of Transitional Provisions, and 2 paragraphs of Additional Provisions. Article 1 paragraph (2) of the 1945 Constitution determined the type of sovereignty adopted in the administration of the state. Under that provision, sovereignty was exercised entirely by the MPR.

Based on this provision, it is clear that the theory of sovereignty adopted by the Indonesian nation was the theory of popular sovereignty. This means that the highest state power rests in the hands of the people. This supreme power was exercised by the MPR, which constituted the embodiment of the entire Indonesian people. The members of the MPR consisted of:

1. Members of the House of Representatives (DPR).
2. Representatives from the regions.
3. Representatives of groups.

The duties and authorities of the MPR included:

1. Establishing the Constitution.
2. Establishing the Broad Outlines of State Policy (GBHN).
3. Appointing the Head of State (President) and Deputy Head of State (Vice President).

The 1949 Constitution of the Republic of Indonesia was the constitution that came into force in the Republic of Indonesia as of 31 January 1950. The 1949 RIS Constitution consisted of 6 chapters and 196 articles. Article 1 paragraph (2) of the 1949 RIS Constitution determined the distribution of power in the Republic of the United States of Indonesia. That provision did not explicitly determine the theory of sovereignty applied in Indonesia. Rather, it only provided for the exercise of supreme sovereignty. The parties exercising supreme sovereignty were the Government together with the DPR and the Senate. As stated by Yamin and agreed with by Ismail Suny:

“The holder of sovereignty in the Republic of the United States of Indonesia is not the people, but the state. Thus, the principle underlying the 1949 Constitution is state sovereignty (staatssouvereiniteit).”

It may therefore be concluded that the sovereignty adopted under the 1949 RIS Constitution was the theory of state sovereignty, in the sense that sovereignty resided in the state. The state creates law. Therefore, everything must submit to the state. The state is regarded as an entity that creates legal rules. Law exists because the state exists, and no law applies unless it is desired by the state.

The 1950 Provisional Constitution determined the theory of sovereignty adopted by the Republic of Indonesia in Article 1 paragraph (2) of the 1950 Provisional Constitution. That provision expressly stated that the sovereignty of the Republic of Indonesia was vested in the people. This sovereignty was exercised by the Government together with the DPR. It is therefore clear that the theory of sovereignty adopted under the 1950 Provisional Constitution was the theory of popular sovereignty. The people were the holders of the highest power in the Republic of Indonesia. The 1950 Provisional Constitution remained in force for only nine years. The 1950 Provisional Constitution was replaced by the 1945 Constitution through the Decree of 5 July 1959, which maintained the theory of popular sovereignty.

Since the reform movement began in 1997, the people have demanded radical changes in national and state life. One such change was the amendment of the 1945 Constitution, which provided that sovereignty is vested in the people and exercised according to the Constitution. At present, sovereignty must be realized in accordance with the goals and ideals of the Indonesian nation. For that purpose, there must be parties entrusted with the mandate to administer the government so that the goals and ideals of the Indonesian nation may be achieved. In order to embody the people in the administration of the state in accordance with the mandate of the 1945 Constitution of the Republic of Indonesia, the President and Vice President are elected directly by the people (Article 6A of the 1945 Constitution). After carefully and seriously studying, examining, and considering the fundamental matters faced by the people, the nation, and the state, and exercising its authority under Article 37 of the 1945 Constitution, the MPR-RI amended and/or added Articles 6, 6A, 7A–7B–7C, and Article 8 paragraphs (1) and (2) concerning the President and Vice President. The election of the President and Vice President is conducted democratically and in a civilized manner, with the broadest possible participation of the people, based on the principles of direct, general, free, secret, honest, and fair elections. Within this framework, the MPR inaugurates the President and Vice President elected through the General Election.

The Indonesian nation is understood to adhere to popular sovereignty. The basis for this understanding may be found in the fourth principle of Pancasila. It provides:

“Democracy guided by the wisdom of deliberation/representation.”

Another indication that sovereignty resides in the hands of the people may be found in the fourth paragraph of the Preamble to the 1945 Constitution, which provides as follows:

“Then, in order to form a Government of the State of Indonesia that shall protect the entire Indonesian nation and the whole of the Indonesian homeland, and in order to advance the general welfare, educate the life of the nation, and participate in the implementation of world order based on independence, lasting peace and social justice, Indonesia’s national independence shall be formulated in a Constitution of the State of Indonesia, which shall be established within a structure of the Republic of Indonesia that is based on the sovereignty of the people and on the belief in the One and Only God, just and civilized humanity, the unity of Indonesia, and democracy guided by the wisdom of deliberation/representation, and by realizing social justice for all the people of Indonesia.”

The fourth paragraph of the Preamble to the 1945 Constitution, particularly the portion printed in bold in the original text, expressly demonstrates that the Indonesian state adheres to popular sovereignty.

Based on the foregoing description of popular sovereignty, it is clear that our state adheres to the theory of popular sovereignty. The people possess the highest power in the state, but its exercise is regulated by the Constitution. In addition to adhering to popular sovereignty, the 1945 Constitution of the Republic of Indonesia also embraces the sovereignty of law. This can be seen in Article 1 paragraph (3) of the 1945 Constitution, which provides: “The State of Indonesia is a state based on law.” This means that our state is not a power-based state. Everything relating to social, national, and state life is governed according to law.

Article 27 paragraph (1) of the 1945 Constitution also constitutes a basis for the proposition that our state embraces the sovereignty of law. Its full text provides: “All citizens shall have equal status before the law and the government and shall be required to uphold the law and the government, with no exception.” This means that every citizen has equal standing before the law.

Sovereignty of the People in a Rule-of-Law State

In addition to affirming popular sovereignty, the 1945 Constitution also affirms that Indonesia is a rule-of-law state, as provided in Article 1 paragraph (3) of the 1945 Constitution: “The State of Indonesia is a state based on law.”

This demonstrates that state power is not exercised solely on the basis of the will of those in power, but must be exercised on the basis of law.

This principle is also reflected in Article 27 paragraph (1) of the 1945 Constitution, which provides: “All citizens shall have equal status before the law and the government and shall be required to uphold the law and the government, with no exception.” This affirms that every citizen has equal standing before the law and the government and is required to uphold the law and the government.

Accordingly, popular sovereignty and the rule-of-law state operate within a single constitutional framework: the people are the holders of supreme power, while the exercise of that power must remain based on the Constitution and applicable law.

REFERENCES

1. Books:

Abu Daud Busroh, Abubakar Busro, Asas-Asas Hukum Tata Negara, 3rd ed., Ghalia Indonesia, Jakarta, 1991.

Hamid S. Atamimi, Peranan Keputusan Presiden Republik Indonesia dalam Penyelenggaraan Pemerintahan Negara (suatu studi analisis mengenai keputusan Presiden yang berfungsi pengaturan dalam kurun waktu Pelita I–Pelita IV), Doctoral Dissertation, Universitas Indonesia, Jakarta, 1990.

Jimly Asshiddiqie, Kontitusi dan Konstitusionalisme Indonesia, Kontitusi Press, Jakarta, 2005.

J.J. von Schmid, Ahli-Ahli Pikir Besar Tentang Negara dan Hukum (dari Plato sampai Kant), PT. Pembangunan, Jakarta, 1980.

John Locke, Two Treatises of Government, New Edition, London: Everyman, 1993.

Ni’Matul Huda, Hukum Tata Negara Indonesia, Jakarta, 2010.

Petrus C.K.L. Bello, Hukum dan Moralitas Tinjauan Filsafat Hukum, Jakarta, 2012.

Soedikno Mertokusumo, Mengenal Hukum Suatu Pengantar, Yogyakarta, 1996.

Soehino, Ilmu Negara, Yogyakarta, 1980.

Theo Huijbers, Filsafat Hukum dalam Lintasan Sejarah, 13th ed., Yogyakarta: Kanisius, 2001.

Salim HS, Perkembangan Teori Dalam Ilmu Hukum, Jakarta: Rajawali Pers, 2010.

1. Legislation:

Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 (The 1945 Constitution of the Republic of Indonesia).

Undang-Undang Dasar Sementara 1950 (The 1950 Provisional Constitution).

Dekrit 5 Juli 1959 (Decree of 5 July 1959).

1. Internet:

http://wardahcheche.blogspot.com/2014/04/teori-kedaulatan.html

SOURCE NOTES

[1] See Article 1 paragraph (3) of the 1945 Constitution of the Republic of Indonesia.

[2] Soehino, Ilmu Negara, Yogyakarta, 1980, p. 151.

[3] Ni’Matul Huda, Hukum Tata Negara Indonesia, Jakarta, 2010, p. 81.

[4] The DPR is an institution representing public aspirations whose authority is delegated by the people through General Elections; such delegation is not absolute. The public may continue to exercise control over policies produced by the institution.

[5] Petrus C.K.L. Bello, Hukum dan Moralitas Tinjauan Filsafat Hukum, Jakarta, 2012, p. 48.

[6] Wardah, Blog Tentang Teori Kedaulatan, http://wardahcheche.blogspot.com/2014/04/teori-kedaulatan.html, accessed 18 May 2015.

[7] A. Hamid S. Atamimi, Peranan Keputusan Presiden Republik Indonesia dalam Penyelenggaraan Pemerintahan Negara (suatu studi analisis mengenai keputusan Presiden yang berfungsi pengaturan dalam kurun waktu Pelita I–Pelita IV), Doctoral Dissertation, Universitas Indonesia, Jakarta, 1990, pp. 84–85.

[8] Abu Daud Busroh, Abubakar Busro, Asas-Asas Hukum Tata Negara, 3rd ed., Ghalia Indonesia, Jakarta, 1991, pp. 125–126.

[9] J.J. von Schmid, Ahli-Ahli Pikir Besar Tentang Negara dan Hukum (dari Plato sampai Kant), PT. Pembangunan, Jakarta, 1980, pp. 72–73.

[10] Theo Huijbers, Filsafat Hukum dalam Lintasan Sejarah, 13th ed., Yogyakarta: Kanisius, 2001, p. 18.

[11] John Locke, Two Treatises of Government, New Edition, London: Everyman, 1993, p. 163.

[12] Ibid., pp. 122–125.

[13] Theo Huijbers, 2001, op. cit., pp. 221–222.

[14] Ibid., pp. 250–251.

[15] Jimly Asshiddiqie, Kontitusi dan Konstitusionalisme Indonesia, Kontitusi Press, Jakarta, 2005, p. 69.

[16] Soehino, Ilmu Negara, Liberty, Yogyakarta, 1980, p. 152.

[17] Ibid., p. 153.

[18] Ibid., p. 155.

[19] Ibid., p. 160.

[20] Ibid., p. 161.

[21] Salim HS, Perkembangan Teori Dalam Ilmu Hukum, Jakarta: Rajawali Pers, 2010, p. 135.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Undang-Undang Dasar Negara Republik Indonesia Tahun 1945.

[26] Ibid.