Konstitusi dan Hukum Konstitusi | Seri Kuliah Dr.Otong Rosadi,SH,M.Hum

Summary

This video script explores the theory of constitutions and constitutional law, highlighting its importance in the realm of state law. It discusses the definitions of a constitution, its written and unwritten forms, and examples from different countries, such as the U.S., Indonesia, the UK, and Saudi Arabia. The script also delves into the classification of constitutions based on their documentation, rigidity, and hierarchical importance. It emphasizes the distinction between written and unwritten constitutions, as well as the flexibility and amendment procedures involved in each type.

Takeaways

• 😀 The term 'Constitution' originates from the French word 'constituer,' which means to organize or establish, often referring to the formation or structuring of a country.
• 😀 The Constitution is a fundamental source of state law, and its significance is crucial when discussing constitutional law or the state system.
• 😀 There are two main types of Constitutions: written (documented) and unwritten (customary). Written constitutions are formally recorded in a single document, while unwritten constitutions consist of practices and traditions.
• 😀 A written constitution typically refers to formalized documents like the constitutions of the United States or Indonesia.
• 😀 Unwritten constitutions, such as those in the United Kingdom and Saudi Arabia, rely on traditions, customs, and multiple legislative acts rather than a single written document.
• 😀 The distinction between 'written' and 'unwritten' constitutions is often debated. Prof. Sri Sumantri suggests referring to them as 'documented' and 'undocumented' constitutions for clarity.
• 😀 Constitutions can also be classified based on their 'degree of importance,' with some constitutions being of higher rank and others being more ordinary, based on their creation process and legal weight.
• 😀 A 'higher rank' constitution is one created by a specialized body with a unique procedure, making it more difficult to amend compared to ordinary laws.
• 😀 A 'rigid' constitution, like that of Indonesia, has a strict amendment process, requiring special procedures and bodies, while a 'flexible' constitution, like in the UK, can be amended more easily with ordinary legislative processes.
• 😀 The distinction between rigid and flexible constitutions revolves around the ease or difficulty of their amendments, reflecting the level of protection and stability intended by the drafters.

Q & A

What is the importance of constitutional theory in the context of constitutional law?

Constitutional theory is crucial in discussing constitutional law as it defines the principles that govern the creation, function, and amendment of a constitution, which is the highest legal framework in a state. It serves as the foundation for understanding state governance and the rule of law.

What are the two main categories of constitutions discussed in the transcript?

The two main categories of constitutions discussed are written constitutions, which are documented in a formal text, and unwritten constitutions, which are based on customs and practices.

What is the difference between a 'written' and an 'unwritten' constitution?

A written constitution is a formal document that outlines the laws and principles of the state, like the U.S. Constitution or Indonesia's Constitution. An unwritten constitution, on the other hand, is not codified in a single document and instead consists of statutes, conventions, and legal practices, as seen in the UK.

Why is the classification of the UK’s constitution as 'unwritten' misleading?

The classification of the UK’s constitution as 'unwritten' is misleading because, while it is not contained in a single document, the UK's constitution is governed by various laws and statutes, such as those related to Parliament and the executive, which are essentially written laws.

What did Professor Sri Sumantri suggest regarding the terminology of 'written' and 'unwritten' constitutions?

Professor Sri Sumantri suggested that the terms 'written' and 'unwritten' constitutions are not entirely accurate. Instead, the distinction should be made between 'constitutions documented in one text' and 'constitutions not documented in one text,' as this better reflects the nature of various constitutional arrangements.

What is meant by a constitution having 'higher' or 'lower' status?

A constitution with 'higher' status refers to a constitution that is created through a special, more rigorous process, often involving a specific body and requiring special procedures for amendments. A 'lower' constitution, in contrast, is one that is enacted through regular legislative processes and does not have the same elevated status.

How does the flexibility of a constitution affect its ability to be amended?

A rigid constitution is one that has a complex, special procedure for amendments, making it difficult to change, as is the case with Indonesia’s Constitution. A flexible constitution, like the UK's, can be amended through the ordinary legislative process, making changes easier and more common.

Can you give examples of countries with 'written' and 'unwritten' constitutions?

Examples of countries with written constitutions include the United States, Indonesia, and the Philippines. Examples of countries with unwritten constitutions, or those not documented in a single text, include the United Kingdom and Saudi Arabia.

Why is the distinction between written and unwritten constitutions important?

The distinction helps clarify the legal framework of a country and how its constitution can be amended or interpreted. A written constitution is more rigid and codified, while an unwritten constitution is more flexible, often relying on customs and judicial interpretation.

What role does the 'practice of governance' play in unwritten constitutions?

In unwritten constitutions, the practice of governance—such as parliamentary procedures and executive practices—becomes an integral part of the constitution. These are not formally codified but form a crucial part of the state's constitutional framework, as seen in the UK.