Building a constitutional awareness Against the Constitutional Rights of Citizens For

Constitutional Law Enforce Efforts1

By:
Dr. Didik Sukriono, SH., M.Hum.2

Abstrac
As the basic law written, Constitution of the Republic of Indonesia Year 1945 Article 1
Paragraph (3) expressly states, that Indonesia is a State of Law. One element that is owned
by the state law is the fulfillment of basic human rights (basic rights/fundamental rights) as
disclosed by Friedrich Julius Stahl. Efforts to achieve a constitution that can follow the
development and fulfillment of basic human rights, constitution must have a dynamic aspect
and were able to capture the phenomenon of historical change, so as to make it as a
constitution that is always alive. Only problem is the government's performance as executor
constitution (executive, legislative and judicial) are still not provide justice and satisfaction for
those seeking justice. Therefore, the strengthening of constitutional awareness is a
necessity in order to protect and fulfill the basic rights of citizens. The Constitution as the
basic law major and is the result of the will of the entire people's representative, must be
implemented in earnest in every joint life of the nation. The principle which arises is any act,
deed, and / or the rules of all the authorities delegated by the constitution, must not be
contrary to the basic rights in the Constitution itself.

Keywords:Build, constitutional awareness, constitutional rights and constitutional law

Prologue

One of the basic principles that have confirmation in changing the constitution of
1945 is the rule of law, as stated in Article 1 Paragraph (3) constitution in 1945 which stated
that "Indonesia is a country of law". Even historically constitutional state (Rechtsstaat) is a
country that is idealized by the Founding Fathers as stated in the explanation of the general
constitution of 1945 prior to the change of the system of government, which stated that the
Indonesian state is based on law (rechtsstaat), not by power alone (machtsstaat).3

1. Makalah disampaikan pada Kegiatan Simposium Internasional 2016, Direktorat Jendral Peraturan
Perundang Undangan Kementrerian Hukum dan HAM pada tanggal 24 Agustus 2016.
2 . Dosen Hukum dan Kewarganegaraan Universitas Negeri Malang, Anggota Asosiasi Pengajar Hukum
Tata Negara Negara (HTN) dan Hukum Administrasi Negara (HAN) Jawa Timur, Anggota Asosiasi Pengajar
Hukum Acara Mahkamah Konstitusi, Anggota Dewan Pembina MCW, Email: didik.sukrono.fis@um.ac.id
3 Undang Undang Dasar Negara Republik Indonesia Tahun 1945 Sebelum Perubahan dan Sesudah Perubahan.
 Implications of the provisions of Article 1 Paragraph (3) of the constitution of the
republic of Indonesia Year 1945, positioning the State of Indonesia as a country that
adheres to constitutional supremacy of law, namely: the constitution, constitutionality and
constitutionalism. The Constitution is the supreme law of the written basis, the
constitutionality of an act and act in accordance with the constitution and constitutionalism is
understood constitutional citizens. Therefore, the Indonesian state required to perform
normative and empirical recognition of the principle of the rule of law, namely that all the
problems solved by the law as the supreme guideline. Normative recognition of the rule of
law embodied in the establishment of legal norms hierarchically culminating in the
supremacy of the constitution. While empirically manifest in the behavior of the government
and society based on the rule of law. All governmental actions must be based on legislation
that is valid and in writing. Legislation should exist and apply first or precede actions
undertaken. This means that every administrative act must be based on the rule or rules and
procedures.4
But on the other when the practice of democratic state of law has been implemented,
often encountered disappointments as most people who are not satisfied with the
implementation of rule by the executive, legislative and judicial. The most factual examples
are: confusion about the number of citizens who lost their right to vote because it is not
registered in the voters list (DPT); The murder case of Munir; Verdict Review (PK) with
Pollycarpus convict filed by the Public Prosecutor (Prosecutor) after the Supreme Court
acquitted in cassation. Though theoretically in the law of criminal procedure, PK can only be
filed by a convicted person or by legal counsel, so the decision PK Punish Pollycarpus rated
mistaken as filed by the Attorney General's Office (AGO); Election disputes involving Alzier
Dianis Lampung Thabrani (Kader Golkar) with Sjachroedin Z.P (Kader PDIP). In such cases,
the Supreme Court ruled in favor Alzier so entitled are the Governor of Lampung. But until
the end of the tenure of President Megawati Soekarnoputri, Alzier can not be elected
because the President already inaugurated Sjachroedin as governor of Lampung; etc.
Satjipto Rahardjo in Anis Ibrahim, said the Indonesian legal community are expected
to position itself as a lightening has been as slow in capturing and resolving all legal issues
are so complex, it has implications for the slow progress in law enforcement. Indeed,
deterioration of law in Indonesia can not completely shed to the law enforcement, because
the deterioration of the current law as a result of suboptimal various components of the legal

4 Jimly Asshiddiqqie, (2005), Konstitusi dan Konstitusionalisme Indonesia, Penerbit Konstitusi Press Jakarta,
Hlm. 68.
system (legal structure, legal substance, legal culture) and the most important is the low
awareness of the law in each joint community life.5
The Constitutional Court is the only judicial institution that has a function to guard the
constitution, the Constitutional Court should the authority to decide Constitutional Complaint
and Constitutional Question. CC. and CQ. is (complaints or constitutional questions to the
Constitutional Court for violations of constitutional rights which no legal instrument upon
which or is no longer available it track the completion of the legal / judicial) filed by
individuals (people) citizens who feel their constitutional rights (constitutional rights or basic
rights) aggrieved by a decision of state institutions, legislative, executive, and judicial. It is
intended that the basic rights or rights which every citizen can not be reduced or disturbed at
all, either by individuals, groups, and even by the state. Is
The authority of the Court to decide upon the constitutional complaint is still
constrained because the authority has not yet been included explicitly in the 1945
Constitution, but bearing in mind the importance of the protection of constitutional rights of
citizens, the function of the Court as an institution is deemed necessary guardian of the
constitution has the authority constitutional complaint. During this one is testing the authority
of the Constitutional Court against the Constitution Act of 1945 (Judicial), which means only
a violation of constitutional rights of citizens in the form of legislation.
Provisions that regulate the constitutional complaint in Indonesia has not been
included explicitly in the constitution, that is not written in the 1945 Constitution, however
implicitly contained their constitutional rights of citizens are protected by the state. So that
every citizen who felt their constitutional rights violated by the actions of the authorities can
take the case to the judicial authorities, in this case is MK (according to its function as the
guardian of the constitution). It is closely related to the theory of legal development is
responsive, the theory states that the legal framework in principle should be participatory,
and contains the proper values based on the principles of law that developed in the
community.6
With its authority, the Constitutional Court is expected to guard the values of the
constitution and democracy, namely that: (1) Guards constitution (the guardian of
constitution); (2) The interpreter is the end of the constitution (the final interpreter of the
constitution); (3) Guards democracy (the guardian of democracy); (4) Protecting the
constitutional rights of citizens (the protector of citizen's constitutional rights); and (5)
protective of human rights (the protector of human rights). This means that when there is a

5 Anis Ibrahim, (2007), Merekonstruksi Keilmuan Ilmu Hukum & Hukum Milenium Ketiga, (Malang : In-TRANS,
hlm. 32
6 Op.Cit, Anis Ibrahim, Hlm. 77.
violation of the constitutional rights of citizens that offense contained in the provisions of laws
or regulations can be rectified through one authority is a judicial mechanism. So, the
question is what mechanisms can be taken for actions or decisions that state officials
violated the constitutional rights of citizens? In some aspects indeed be used ordinary
judicial mechanisms, particularly for violations that occur because of misuse of authority and
misunderstood. It can be done, either through the criminal justice, civil, and state
administration.
But the judicial process still has a gap, that is the legal basis used to prosecute is at
the level of legislation down. Is not constitutional rights of citizens guaranteed by the
Constitution? What if there is no legal provision violated, but clearly violates the
constitutional rights of citizens? So how about if something goes wrong interpretation and
application of the law by judges in the judicial process that is passed from the first to the last
level? How to form strengthening constitutional awareness of the constitutional rights of
citizens. Those questions arise because of the importance of the protection of citizens'
constitutional rights, especially the rights and fundamental freedoms guaranteed by the
constitution.

Constitution and constitutional awareness

Etymologically, the term constitution is very diverse in every vocabulary every
country. The term constitution is a constitution in English and in French constituer. The
second word is derived from the Latin meaning Constitutio basic body composition. In the
Dutch language the term constitution is called grondwet consisting of the word grond basic
means and said wet meaningful legislation. Thus the term constitution the same as the
constitution. Then, in the German language the term constitution called verfassung.7
In the practice of constitutional sense constitution generally has two meanings. First,
the constitution has a broader meaning than the constitution. The Constitution includes the
basic law (constitution written) and conventions (unwritten constitution). Thus we can say the
constitution belongs to the part of the constitution. Secondly, the constitution has the same
meaning as the constitution.8 The second sense is ever enacted in the Republic of
Indonesia with the constitutional practice called the Constitution of the United Republic of
Indonesia Year 1945 with the term Constitution of the Republic of Indonesia in 1949.
The Constitution as the basic law major and is the result of the will of the entire
people's representative, must be implemented in earnest in every joint life of the nation.
Therefore, the principle that arises is any act, deed, and / or the rules of all the authorities

7 Riyanto, A. (2000), Teori Konstitusi. Bandung: Yapemdo, Hlm. 17-19.

8 Ibid., Riyanto, Hlm 49-51.
delegated by the constitution, must not conflict with the basic rights and the constitution
itself.
Thus, the Constitution of the Republic of Indonesia Year 1945 which is the
constitution of the nation of Indonesia is the highest legal rules whose existence is based on
the legitimacy of the sovereignty of the people and the state of law. Therefore, the
Constitution of the Republic of Indonesia Year 1945 is seen as a form of collective
agreement (general agreement) "all the people of Indonesia" which has sovereignty. It was
at once brings the consequence that the Constitution of the Republic of Indonesia Year 1945
is the highest rule in the life of the nation that governs how the sovereignty of the people will
be implemented. This is theoretically called the supremacy of the constitution as one of the
main principles of the establishment of a democratic constitutional state. In that regard, Solly
Lubis argued that the Constitution is the main source of the norms of constitutional law.
Constitution set the shape and structure of the state, tools and equipment at the center of
the area, organize tasks that supplies tools and relationships to one another.9
On the other hand, the Constitution of the Republic of Indonesia Year 1945 also
includes a national objective as the ideals of freedom as stated in the preamble. Between
national goals with the basic rules of the road is a unity and purpose. So that each national
goals can be achieved, the implementation of the basic rules of the constitution in the
practice of national and state an absolute requirement that must be met. Moreover, the
constitution also contained a right and duty of every citizen. Therefore, the constitution must
be guarded with the understanding that has always been really implemented.
In accordance with one definition of a state of law, where every action of state
officials and citizens must be based on and within the law, then that should be guarding the
constitution is all the organizers and all citizens by invoking the authority, rights and
constitutional obligation. If every officer and the apparatus of state officials have to
understand the Constitution of the Republic of Indonesia Year 1945 and to implement its
authority by the Constitution of the Republic of Indonesia Year 1945, any laws, policies, and
the resulting actions are a form of implementation of the Constitution of the State Republic of
Indonesia Year 1945.
To balancing the implementation of the constitution by all citizens, it is necessary to
have constitutional awareness of citizens to implement legislation and policies that have
been created by the Constitution of the Republic of Indonesia Year 1945, and control the
implementation of the Constitution of the Republic of Indonesia Year 1945 in good shape
Invite Laws, policies, and actions of state officials.10

9 M. Solly Lubis, (1978), Asas-asas Hukum Tata Negara, Alumni Bandung, Hlm. 48-49.

10 J.M. Gaffar. (2007). Mengawal Konstitusi, http://www.koransindo.com Html 25 Oktober 2007.

 Constitutional awareness is conceptually defined as someone who exudes a
personal quality insights, attitudes, and behaviors that charged ideals and noble commitment
to nationality and Indonesia. Constitutional awareness is one of conviction of citizens of the
importance of implementing the values of the constitution.11
Constitutional awareness is part of the moral consciousness. As part of the moral
consciousness, awareness of the constitution has three main elements, namely: (1) The
feeling obliged or moral obligation to act in accordance with the country's constitution exists
and happens in every heart citizen, anyone, anywhere, anytime; (2) Rational, moral
consciousness can be said to be irrational because it generally applicable, anyway open to
justification or denial. Thus the constitutional awareness is rational and can be expressed
also as an objective that can be universalized, meaning that it can be approved, valid at any
time and place for every citizen; and (3) Freedom, on moral consciousness, free citizens to
comply with various laws and regulations in force in the country, including the provisions of
the state constitution.12
Constitutional awareness of citizens have some level that indicates the degree of
every citizen in implementing the provisions of the state constitution. Levels of constitutional
awareness by N.Y. Bull, in Kosasih Djahiri, consisting of: (1) Awareness that is anomous,
namely awareness or compliance with the provisions of the state constitution is not clear
basis and the reason or orientation; (2) The awareness that is heteronomous, ie awareness
or compliance with provisions of the state constitution which is based on the basic
orientation / motivation variegated or alternated. It is also less stable because it is easy to
change by circumstances and situations; (3) The awareness that is sosionomous, namely
consciousness or compliance to oriented state constitutional provisions on common gait or
the general public; and (4) Consciousness that is autonomous, ie awareness or compliance
with provisions of the state constitution based on the concept of consciousness that is inside
of a citizen. This is the highest level of consciousness.13
Markers citizens with constitutional awareness are citizens who have kemelekkan to
the constitution (constitutional literacy). In this regard, Toni Massaro stated that kemelekkan
of the constitution will direct citizens to participate duty as a citizen. Udin S. Winataputra
identify some form of constitutional awareness Indonesian citizens which includes: (1)
Awareness and willingness to maintain and develop the independence of Indonesia as a
nation to the realization of human rights of everyday behavior; (2) Awareness and
recognition of the independence of Indonesia as a nation but as a mercy of Allah Almighty to

11 Udin S. Winataputra dan Dasim Budimansyah. (2007), Civic Education: Konteks, Landasan, Bahan Ajar dan
Kultur Kelas. Bandung: Program Studi Pendidikan Kewarganegaraan SPs UPI Bandung, Hlm. 18.
12 V. Magnis-Suseno, (1985). Etika Umum. Yogyakarta: Kanisius, Hlm. 25.
13 A. Kosasih Djahiri, (1985), Strategi Pengajaran Afektif-Nilai-Moral VCT dan Games dalam VCT. Bandung:
Jurusan PMPKN IKIP Bandung, Hlm. 24.
the realization of everyday behavior; (3) Sensitivity and responsiveness to the obligations of
the State Government to protect the entire Indonesian nation and the entire country of
Indonesia with an embodiment of everyday behavior; (4) The sensitivity and responsiveness
to the obligations of the State Government to promote the general welfare with the
embodiment of everyday behavior; (5) Sensitivity and responsiveness to the obligations of
the State Government to life, by the embodiment of everyday behavior; (6) The sensitivity
and responsiveness to the obligations of the State Governments are implementing world
order based on freedom, lasting peace and social justice; Etc.

Enabling the Constitution NRI Year 1945

Conceptually there are several constitutional functions, namely: (1) ideological
function, namely that the constitution requires a commitment to the ideology, Pancasila
ideology example in Indonesia; (2) Function nationalistic, namely that the state constitution
nurture nationalism, members contribute to a sense of unity and national identity, for
example through a flag, crest and anthem; (3) The function of the structure, namely
constitution building political expectations and how these expectations will be met or
realized; (4) The function of rationality, namely that the desires of political, political goals and
convictions politics in legal terminology so that national and objective; (5) The function of
public relations, namely that the constitution be evidence of the birth of a nation and its
presence in the international community; (6) The function of registration, namely the
constitution record the results of conflict and political development through a selection
process and debate the leaders of nations; (7) The function of symbols, namely the
constitution must satisfy the human need for norms and fundamental values, such as
democracy, human rights, rule of law, justice, freedom, etc .; (8) The function of the barrier,
which prevents the constitutional political change and radical anarchist or unconstitutional,
such as separatism, rebellion, etc.14
Efforts for the proper functioning of the 1945 Constitution in the life of society, nation
and state, the constitution / 1945 should be kept functional, namely the principles contained
in the 1945 Constitution should be embodied in the reality of life of state and society. This
means that the cosntitution of 1945 should be grounded or implemented seriously by all
components of the nation.
The principles of the 1945 Constitution which must be grounded in the life of state
and society are: (1) The form of state unitary Article 1 Paragraph (1), meaning that there is
no unity in the state organization which Homeland; (2) The form of government republic
Article 1 Paragraph (1), namely the possibility of circulation of government on a regular

14 Op. Cit., Jimly Asshiddiqiie, Hlm. 33.

basis, because the President as head of state and head of government elected through
direct election by the people; (3) presidential government system, that the President is not
responsible to the representative institutions (MPR, DPR and DPD) and the President can
not dissolve the House of Representatives (Article 7C). Supplied constitutional mechanism
to dismiss President and / or Vice President in the middle of the road; (4) The sovereignty
vested in the people (Article 1 Paragraph (2)), so that the people through electoral
periodically according to the principle of "Luber and Jurdil" (Section 22E), can also determine
filling public positions, namely the President and / or Vice President, members of Parliament
, DPD and DPRD and even regional head and deputy head of the region (Article 18); (5) The
principle of state of law (Article 1 Paragraph (3)), which was followed by a system of division
of powers between the various branches of power with according to the principle of checks
and balances, the recognition and protection of human rights (Article 28A through Article
28J) and the judicial authorities that independence (Article 24); (6) The system of local
government with the principle of broad autonomy and recognition and respect for the
privileges and specificities of the region (Article 18, Article 18A and Article 18B); (7) System
independent judicial power carried out by the Supreme Court (MA) as well as judicial
authorities in their below (general courts, religious courts, administrative courts, military
courts) and Constitution Court (MK); (8) economic system according to economic democracy
and the principle of family (Article 33); and (9) The defense system and security of the
people of the universe by the military (defense sector) and Police (security areas) as the
main force and the people as a supporting force (Article 30).15
Ius constituendum Constitutional Complaint and Constitutional Question
1. Constitutional Complaint
Under the provisions of Article 24 paragraph (1) and (2) constitution in 1945 in
conjunction with Article 2 of Law No. 24 of 2003 on the Constitutional Court, that the position
of the Constitutional Court are: (1) It is one of the state institutions that conduct judicial
power; (2) An independent judicial power; and (3) As law enforcement and justice. While the
duties and functions of the constitutional court by the General Explanation of laws the
constitutional court is to handle each case specific constitutional or constitutional cases in
order to maintain the constitution to be implemented in a responsible manner in accordance
with the will of the people and democratic ideals. The existence of the constitutional court as
well as to keep the implementation of a stable government, and also the correction of past
experience of constitutional posed by the double interpretation of the constitution.

15 Abdul Mukthie Fadjar, (2009), Peranan Mahkamah Konstitusi Dalam Membangun Kesadaran Berkonstitusi,
Makalah disampaikan pada Seminar Nasional Pendidikan Kewarganegaraan: Membangun Kesadaran
berkonstitusi Bagi Guru Mata Pelajaran PPKN Sekolah Dasar Se Kota Malang, 26 November 2009,di Universitas
Kanjuruhan Malang.
 Based on the foregoing article, are clearly implied that the freedom and the
constitutional rights of citizens are protected by the 1945 Constitution, this means that the
state through the device can not violate the rights of citizens. Because of the constitutional
rights of citizens is a fundamental right that must to protected by the state. The authority in
resolving cases related to violations of citizens' constitutional commonly called constitutional
complaint authority. Constitutional complaint or in German is called vervasungsbeschwerde
can be interpreted that the rights held by any person or entity to perform the rights held by
any person or entity to perform the statement objected to the government's treatment for
them.16
According to Moh. Mahfud MD17, the notion of constitutional complaint is filing a
case to the Constitutional Court for violations of constitutional rights which no legal
instrument upon which to memperkarakannya or is no longer available upon completion
pathway legal / justice. Furthermore Ahmad Syahrizal constitutional complaint are
constitutional complaints mechanism for citizens or people who wanted to question the
alleged violations of constitutional rights to the constitutional court.18
Additionally In modern democratic state of law, constitutional complaint is also a
constitutional complaint mechanisms as a tool for human rights protection. So as to give a
constitutional complaint authority is expected to provide assurance that the processes
determining the state administration, either in the legislation, the state administration and
judicial decision does not violate the constitutional rights of citizens.
Based on these opinions, the understanding of the constitutional complaint about the
same and the meaning that is not much different. And if it is linked with the legal paradigm
developed at this time, where there are still many cases of constitutional violations against
citizens, while the rule of law provided has not been able to protect their constitutional rights.
Therefore, the proper steps done is through the mechanism of constitutional complaint.
1) Countries that have done the provisions of the constitutional complaint are:
the German Constitution, Article 93 paragraph (1) point 42 explicitly states that the
German Federal Constitutional Court is authorized constitutional complaint, which is
specified in: Bundesverfassunggericht authorized to handle and prosecute "... on
the complaint of constitutionally, being field by any person claiming that's one of his
basic rights or one of his basic rights or one of his rights under article 20 IV or under
article 33, 38, 101, 103 0r 104 has been violated by public authority ";

16 Anonym, Federal Constitutional Court Of Germany, http:Wikipedia.com/, diakses pada tanggal 20 november
2010.
17 Moh. Mahfud MD, 2010, Konstitusi dan Hukum dalam Kontroversi Isu, Jakarta : PT. RadjaGrafindo Persada,
Hlm. 287
18 Ahmad Syahrizal, 2006, Peradilan Konstitusi Suatu Studi tentang Adjudikasi Konstitusional Sebagai
Mekanisme Penyelesaian Sengketa Normatif, Jakarta : PT. Pradnya Paramita, Hlm.102
 2) Article 66 of Constitution of the state of Bavaria (1946) determined: "The
Constitutional Court rules complaint of infringement of constitutional rights by any
public authority (article 48 section 3, article 120). Article 120: "every resident of
Bavaria who Deems his constitutional rights violated by an authority my have
resource to be Bavarian Constitutional Court For Protection";
3) Article 68 Section Constitutional Court act of Korea, emphasized that: "Any person
who claims that is the basic rights wich is a guarantee by the constitution has been
violated by an exercise or non exercise of governmental right power my file a
constitutional complaint, except the judgment of ordinary court, with the
constitutional Court: provide by other laws, no one my file a constitutional complaint
without having exhausted all such process ". Furthermore, Article 68 Section 2
determines: "If the motion made under article 41 section 1 for adjudication on
constitutionally of statutes rejected, the party file constitutional complaint with the
Constitutional Court".19

The mechanism of the implementation of the constitutional complaint, the

Constitutional Court can be given kapada with the expansion of the authority is not the
addition of the authority so no need to change the 1945 Constitution of the 4 powers and 1
obligations owned by the Constitutional Court, the only one that directly pertain to the
respect, protection and fulfillment of rights is a citizen's constitutional authority to test the Act
to the 1945 "Judicial Review". However, according to Jimly Assiddiqie, this term should be
straightened out and replaced with the term "constitutional review" or testing given that the
constitutional authority of the Constitutional Court is to examine the laws against the 1945
Constitution.
In the system of "constitutional review" includes two (2) main tasks, namely: (1) To
ensure the proper functioning of a democratic system in relation to the role or "interpaly"
between the executive branch, the legislative and judicial branches. Its defined that
constitutional review to prevent the domination of power and / or abuse of power by one
branch of power; (2) In order to protect individual citizens from abuse of power by state
institutions detriment of their fundamental rights guaranteed in the constitution.20
Moderate to criteria of legal standing as an applicant, the mechanism of constitutional
complaint, the factual losses is imperative to qualify as legal standing. This is in contrast with
the practice that has been taking place in the Constitutional Court, where not only the parties

19 Atmaja, (2008), Kewenangan Mahkamah Konstitusi: Dimensi Konstitusionalisme, dalam buku mmelanjutkan
pelembagaan Mahkamah Konstitusi, Usulan perubahan terhadap undang-undang RI No 24 tahun 2003 tentang
Mahkamah Konstitusi, Jakarta: Democratic Reform Support Program DRSP, Hlm. 78.
20 Jimly Assiddiqie, 2005, Model-model Pengujian Konstitusional Di berbagai negara, Konstitusi Press, Jakarta,
Hlm. 10-11.
in fact have suffered a loss of constitutional rights, but the parties (based on logical
reasoning) potential losses constitutional by the enactment of a law had been considered
sufficient eligible to be accepted.21

2. Constitutional Question

Constitutional Question is a review mechanism or the testing of a rule of law posed

by the judge who was hearing a case, and in the judicial process it appears the question of
the constitutionality of the provisions of the rule of law that will be used to assess and take a
decision. Mechanism constitutional question, it is also required as part of efforts to ensure
the supremacy of the constitution and the protection of citizens' constitutional rights.
The function of the mechanism of constitutional question is: (1) Avoid the verdict is
contrary to the constitution and violates the constitutional rights of citizens; (2) Give the
testing room to the legislation more widely, especially court judge is a profession that has
more capacity to investigate the possibility of a conflict of norms; and (3) Avoiding violation
of constitutional rights that are not required for judicial review must wait for a court decision
or court proceedings suspended.22
Countries that have implemented the mechanism of constitutional question,
especially countries that adhered to the test of constitutional rule of law through the courts
Constitutional Court. Mechanism constitutional question in some countries is one
mechanism for judicial review. Constitutional Question is an entitlement to the court to file a
constitutional question to the Constitutional Court.
Croatia set up a mechanism constitutional question in Section IV "Review of the
Constitutionality of Laws and the Constitutionality and Legality of Other Regulations Croatian
Constitutional Act. Article 35 paragraph (1) states that when the court found that the rule of
law being applied is not in accordance with the constitution, the case should be frozen and
posed the question to the Constitutional Court (When the court of justice in its proceedings
determines that the law to be applied is not accordance with the constitution, it shall stop the
proceedings and requaire the Supreme Court to present to the Contitutional Court a request
of review of the constitutionality of the law).
Furthermore, the Constitution of South Korea, exclusively that one of the powers of
the Constitutional Court of South Korea is to decide upon the constitutionality of a rule of law
at the request of the court (Article 111 of Constitution of Korea; The Constitutional Court

21 Jazim Hamidi dan Mustafa Lutfi, 2010, Constitutional Question (Antara Realitas Politik dan Implementasi
Hukumnya), Jurnal Konstitusi, Volume 7, Nomor 1, Hlm 44.
22 Mohamad Ali Safaat, 2009, Menggagas Constitutional Question Di Indonesia, Makalah Disampaikan pada
Acara Seminar Nasioanal di Universitas Brawijaya Malang Kerjasama Sekjen dan kepaniteraan MKRI dengan
Pusat Pengkajian Konstitusi (PPK) Fakultas Hukum Universitas Brawijaya Malang, 21 November 2009, Hlm. 1.
shall have jurisdiction over matters the following: 1. The constitutionality of a law upon the
request of the courts; ...)23
There are two types of testing mechanism constitutional question, namely: (1) can be
submitted directly by the courts at all levels are examining a case, for example, Angola,
Austria, Germany, South Korea, Latvia, Lithuania, Malta, Slovenia, and Spain; and (2) Filing
constitutional question made through the Supreme Court, which in Belarus, Croatia,
Georgia, and Russia.
The rationale for the adoption of the practice of Constitutional Question Act is the
number of test cases on the grounds of constitutional damages suffered by the applicant
because it has already been tried and even convicted under the provisions of the Act of
doubtful constitutionality. For example in the case of test articles of the Criminal Code,
namely Case Number 013-022 // PUU-IV / 2006, filed by Eggi Sudjana and Pandapotan
Lubis, Case Number 7 / PUU-VII / 2009 filed by Risang Bima Wijaya and Bersihar Lubis. all
applicants in cases referred to were tried and convicted even have served before he apply to
the Constitutional Court.
To implement the mechanism of constitutional question need not be done with
legislative changes in the constitution of 1945 to add the authority of the Constitutional
Court. Constitutional question is very likely placed as part of the authority of the
Constitutional Court to test the laws against the Constitution. A judge is certainly impaired
his constitutional authority to enforce the law of justice if it should implement a rule of law
constitutional doubt. Through the mechanism of constitutional question avoidable injustice
because it assures the judge's decision does not violate the constitutional rights of citizens
guaranteed in the constitution of 1945 and to prevent legal uncertainty for their verdict turns
out in the future as the basis of the provisions annulled by the Constitutional Court.

Epilogue
The Constitution is the supreme law of the written basis, the constitutionality of an act
and act in accordance with the constitution and constitutionalism is understood constitutional
citizens. Building a constitutional awareness is not an easy matter and requires a long time,
as well as dealing with various obstacles. Factors substance (the contents of the
constitution), structural (apparatus state officials) and cultural (the community to be aware
and abide by the constitution) is a component that is managed simultaneously and
continuously.
Substantially functioning constitution of 1945 in the life of society, nation and state,
by applying the principles contained in the constitution of 1945 in the reality of the life of

23 Ibid., Mohamad Ali Safaat, Hlm. 2

state and society. This means that the constitution of 1945 must be grounded or
implemented seriously by all components of the nation.
The Constitutional Court as the state institutions stipulated in the constitution in 1945
and the law the constitutional court in principle positioned as guardian of the constitution (the
guardian of constitution), the interpreter end of the constitution (the final interpreter of
constitution), the guardian of democracy (the guardian of democracy), protector of the
constitutional rights of citizens (the protector of citizen's constitutional rights), and protector
of human rights (the protector of human rights). Thus, should have the authority to resolve
constitutional complaint and the constitutional question to protect the rights of citizens who
have constitutional rights.

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