SEPARATION AND DIVISION OF POWERS IN THE CONCEPT OF RULE OF LAW AND DEMOCRACY

SEPARATION AND DIVISION OF POWERS IN THE CONCEPT OF

RULE OF LAW AND DEMOCRACY

Introduction

The constitutional movement was born out of the desire to regulate and limit the

power relations that exist between the state and its citizens and between the organs of the

state. The theory of separation and division of state power was very well known in the 18th

century with its famous figure, Montesquieu, a French law scholar born in 1689 after no

longer serving as a high judge in his country, he traveled to several western European

countries and settled in England for two years, one of his most famous scientific works

written after his journey was I Esprit de Louis which was published in 1748 in his scientific

work, the influence of John Locke and his observations on state life in England. According

to him, the function of the rule of law must be separated into three powers of state

institutions, namely:

 Legislative power that makes laws.

 The judicial power that sentences criminals and gives judgments in case of disputes

between citizens.

 The executive power executes the law.

The position of the three powers should be balanced, one is not higher than the other,

this is different from Jhon Locke who gave a higher position to the legislative power, the

thought of the three powers is famous throughout the world with the trias politica, we are

more familiar with Montesquien than John lucke, the first person who created this thought.

The forms of the State according to Montequieu are people's government depends on the

civil virtue or public spirit of the people, monarchy depends on the fear of slavery of its

subjects.

In the 20th century there was a refinement of thinkers on the European continent

Scholten is one of these thinkers in his Velzamelde Geschriften Sholten put forward the

notion of the rule of law, namely by distinguishing the level between the principles and

aspects of the rule of law elements that are considered important are called principles,

elements that are derived are called aspects. The principles of the State of law according to

Scholten's understanding are (1) There are rights of citizens against the State that contain

two aspects First, individual rights are in principle beyond the authority of the State. Second,

the limitation of such rights is only by statutory provisions in the form of generally

applicable regulations (2) the separation of powers Scholten, following Montesquieu,

suggests three powers of the State that must be separated from each other, namely the power

to make laws, the power to execute laws and the power to adjudicate.

The 20th century notion of the rule of law is a synthesis of the 19th century classical

notion of the rule of law in the sense of classical State power is very easy to understand is

very limited which only maintains order and security or is called the night guard State

(nachtwaker-staat), the State should not enter the association of community life or

individuals too far because it is feared that it will reduce the freedom of individual

independence. In the 20th century the rule of law continued to develop, the administration of

the State had changed, the activities of the State had spread to regulate various issues of

community life so that from the classical rule of law to the State of welfare, therefore

Lunhsof put forward the elements of the rule of law in the 20th century, namely the

separation between lawmakers, law executors and the judiciary, the preparation of

democratic lawmakers, the principle of legality and recognition of human rights.

The expression of the State of law is expressly mentioned in the 1945 RIS

Constitution both in the preamble and in the body, in the 4th alenia of the Preamble of the

RIS Constitution and in Article 1 paragraph (1) there is expressly and clearly the expression

of the State of law, as well as in the 1950 UUDS the term State of law is clearly stated in the

4th alenia of the preamble and Chapter I part I, Article 1 paragraph (1) of the 1945 UUDS.

The term State of law in the 1945 Constitution as the basic law of the State at the time of the

proclamation of the Republic of United States was not found implicitly either in the

preamble or in the body but after the emergence of the explanation of the 1945 Constitution

then the term can be found, however, the term State of law clearly and unequivocally can be

explicitly stated in the 1945 Constitution after the third amendment, expressly stated in the

formulation of Article 1 paragraph (3) states that the State of United States is a State of law.

The terminology of the state according to law or the state according to the rule of

law known in England or in Anglo Saxon countries resembles the formulation of "a state

based on law". While the term rechstaat in the explanation of the 1945 Constitution is a term

or formula often used in Continental European countries, such as Germany and the

Netherlands.

The use of these two expressions in the Explanation of the 1945 Constitution

indicates that the United States rule of law is inseparable from the influence of Anglo Saxon

and Continental European understandings. Padmo Wahyono states that United States is a

State based on law with the formulation of rechtstaat, assuming that the pattern taken does

not deviate from the understanding of the State of law in general [genusbegrip], which is

adjusted to the circumstances in United States. That is, it is used with the size of the view of

life and the view of the state.

The implementation of the concept of the rule of law certainly requires a means of

participation of all levels of society, to make rules that then apply in the midst of society

itself. The rule of law without democratic backing will make the rules become authoritarian,

while democracy without a legal basis makes the State without order, so between the rule of

law and democracy are complementary elements.

At the beginning of the idea of constitutional reform, the view developed that the

political and governmental system to be built was a presidential system of government that

should be purified and strengthened accordingly. One of the distinguishing features of the

presidential system from the parliamentary system lies in the pattern of executive-legislative

relations that is unique to each system of government. In a parliamentary system, the

functional relationship between the two is inseparable or mixed with each other. However,

in a presidential system of government, the pattern of the relationship between the two is

strictly separated (decoupling) from one another. The Parliament represents the people to

formulate policies (public police making), oversee their implementation, and ensure that

their implementation is supported by a budget that comes from public money. The president

or government is the servant of the people who is elected and trusted by the people to carry

out and implement all policies that have been agreed upon by the people's representatives in

parliament (public police executing).

Therefore, when Article 6A paragraph (2) of the 1945 Constitution (the third

amendment in 2001) was formulated, it was intended that the election of the president and

the election of members of the legislature be conducted simultaneously. Article 6A

paragraph (2) stipulates that the presidential and vice-presidential candidates are proposed

by a political party or a coalition of political parties participating in the general election

before the general election. The sentence is very clear that the proposal is made by a

political party or a coalition of political parties participating in the general election before

the general election, and it is not stated at all.... Before the presidential election. In actual

fact, the presidential election and legislative elections can be held simultaneously, so that

any party that has been declared eligible as a participant in the general election can propose

presidential and vice-presidential candidates. Two or more political parties participating in

the elections may form a coalition or associate in proposing presidential and vice-

presidential candidates. The presidential candidate from party A and the vice-presidential

candidate from candidate B are what is meant by a coalition of political parties proposing a

pair of presidential and vice-presidential candidates by Article 6 A Paragraph (2) of the 1945

Constitution.

If such a mechanism is implemented, it will be able to guarantee the existence of a

separate legislative executive relationship pattern on the basis of the definite existence

between the presidential institution and the respective parliamentary institutions according to

the Constitution. thus, coalitions can also be held in a definite and binding manner at three

levels at once, namely: (i) coalition or combination of parties in the nomination of the

president and vice president (prelectoral coalition); (ii) coalition in formation cabinet

(government formation), which is done in interaction with. (iii) coalition in the

establishment of parliamentary structure (establishment of minority versus moyoritas).

As a unified system, the three coalition policy models mentioned above can be

applied and should even be applied simultaneously as a unified policy. However, the

implementation can be carried out in stages, namely (i) the coalition stage at the stage of

nominating a pair of presidential and vice-presidential candidates (pre-electoral coalition),

and (ii) the stage of forming a cabinet and at the same time forming the structure of the

majority and/or minority ranks in the DPR. It may happen that members of the DPR or

political parties belonging to the ranks of the governing parties are fewer in number than

those belonging to the ranks of the opposition parties, due to the lack of adequate support for

the elected president and vice president. If this happens, then this is what is commonly

referred to in practice in the United States as a symptom of dividend government or dual

government, which need not be considered negative. That is why it has previously been

proposed that the party recall system be abolished and if it is needed, it is sufficient to

replace it with a constituent recall system that will make the relationship between the

majority versus the minority group namical and not based on groups, but based on an

approach to the interests of the people.

In fact, the opposite will happen: the president's position will become stronger

because of the certainty in the mechanism of the relationship between the legislative

executive. In fact, in the experience of several countries (URUGUAY), it has been proven

that with simultaneous legislative and presidential elections, there will be a synergistic

impact between polularity and the president. The popularity and electability of political

parties and the electability of presidential candidates can accelerate the simplification of the

number of political parties in the long run. In addition, the legislative executive election

compliance mechanism has the effect of minimizing the risk of fear of divided government

symptoms.

In short, it can be found that there are not five advantages that can be derived from the

separation mechanism between the functions of government and the functions of parliament

in an effort to strengthen the presidential system of government, namely the following. (i)

the president can take cover behind the interests of the people, the majority of whom have

given their support. (ii) the president and vice president clearly cannot be removed by the

DPR except through the mechanism of impeachment, which must be seen as a constitutional

facility that benefits the president's position rather than a threat that harms the president's

position. (iii) the party recall system, which has become a scourge for DPR members, will

be abolished so that it can be used to further benefit the president's position. (iv) battles,

competition and disagreements between politicians in the legislative and executive branches

will become more substantive and oriented towards the interests of the people (pro-people)

rather than only oriented towards the interests of groups or groups; and (v) there is no longer

a need for the president and/or vice president to hold positions in political parties for the

purpose of controlling the internal decision-making mechanisms of the political parties to

ensure support for their government as practiced today.

Discussion

Concept and Theory of the Division of State Power

The implementation of the concept of the rule of law makes the division of power

one aspect that plays an important role, the distribution of power to several institutions will

create a balance (checks and balances of power) and in turn will dismiss the absolutism of

power, of course, requires a basic framework of legality so that the implementation of power

can be accounted for by the people as holders of sovereignty in state administration.

Power and sovereignty become the main pillars in the administration of the state it is

a combination of the wishes (aspirations) of the people and the policies implemented by the

government. The term division of power was first coined by Kelsen. According to Kelsen, it

is a mistake to describe the principle of constitutional monarchy as the basis for the

separation of powers.

The functions that were originally combined in the person of the king are not

separated, but divided between the monarch, parliament, and court. Kelsen concluded that

the application of the principle or principle of separation of powers is actually the principle

or principle of the division of power. The concept of supreme power in a State is sovereignty

which is always in the hands of the people.

Jimly Assshiddiqie, 1994, the sovereignty of the people of a country cannot be

separated from the ideology and basis adopted by the country, which will be seen in its

Constitution. Nine percent of the countries in the world explicitly include in their respective

constitutions that sovereignty is in the hands of the people and the government's authority is

derived from the will of the people.

According to Nagel, there are two important things in seeing and studying power and

sovereignty, namely regarding the scope of power (scope of power) which is concerned in

sovereignty and the range (domain of power) related to who is the subject and holder of

power (sovereign). Furthermore, Nagel asserts that the scope of power (sovereignty)

includes two important things, namely (1) who holds the supreme power in the State, this

can concern a person or group of people, a body that conducts legislation and administration

in carrying out government functions as well as (what is controlled by the supreme power

holder).

Power as an implementation of the concept of sovereignty that exists in the state is

realized through how broad or scope (scope of power) the power itself and how much reach

it has (domain of power). Nagel discusses sovereignty in the approach that the breadth or

scope of sovereignty touches on the activities covered by sovereignty, while the reach of

sovereignty touches on the question of who is the holder of sovereignty. The scope of

sovereignty includes the decision-making process to measure how much power the decision

has, while the reach of sovereignty is related to who holds the highest power and what is the

object or target in decision-making or what authority the power holder has.

Power tends to be absolute, therefore a limitation is needed within the framework of

the rule of law, which itself develops along with the development of the notion of

constitutionalism (constituonalism) which can be the basis for limiting power in basic law

(State constitution). The limitation of government power is regulated in the constitution,

both in the capital division of power and in the areal division of power.

Division of Power According to Experts

. The division of power in the state is further discussed by Friedrich in

constitutionalism, while Maass, sees the division of power in two ways, namely capital

division of power as a horizontal division of power or often equated with separation of

power, and areal division of power as a vertical division of power.6 Division and separation

depend on the principles adopted in the legal basis of a State. Meanwhile, Smith sees that

the objectives in the areal division of power can be divided into two categories, namely the

point of view of the central government (government) which includes four main objectives

expected, namely (1) political education; (leadership training; (3) creation of political

stability; (4) realizing democratic governance in the regions. The concept of power or

authority of local government, concerning the legal structure that can take the form of the

form and structure of the State, government in the region, central and local government

institutions, as well as central and local government apparatus.

The limitation of power is included in the constitution because constitutionalism is

an idea that states that government is a collection of activities organized on behalf of the

people, but is subject to several restrictions to ensure that the power needed to run the

government is not abused by the power holder. In line with this, Sri Sumantri states that

there is not a single country in the world that does not have a constitution or basic law, in

which the division of powers, both vertically and horizontally, is commonly regulated.

Meanwhile, according to Arthur Mass, the division of power exists in two ways,

namely capital division of power as a horizontal division of power or often equated with

separation of power and areal division of power as a vertical division of power. The division

and separation depend on the principles adopted in the legal foundation of a State.

Governmental power is defined as the total capacity to govern which is or can be exercised

by a given political community. Power and between territories in different ways.

The division of power can be done in two ways: first, governmental power can be

divided according to the process adopted in government. The capital division of power

(CPO) method, or horizontal division of power, is carried out where the legislative,

executive and judicial processes are each given to one body. On the other hand, the areal

division of power is a vertical division of power, where the legislative process can only be

given to the central government or jointly to decentralized units. Area-based division of

power in this way can occur between the central government and regional governments

(autonomous regions) in the context of a unitary State and between the State and regional

governments in the context of a federal State. This division of power is based on a law.

Therefore, Hans Antlov states that the powers of autonomous regions are received from

above and can be withdrawn through new laws, without the consent of the autonomous

regions concerned.

Second, government power can be divided according to government functions or

activities. By way of areal division of power or vertical division, certain government

functions (such as monetary and foreign relations) are given to the central government,

while certain other government functions are given to the central government local

government. Meanwhile, the capital division of power or Horizontal way is that certain

government functions can be given to government departments that are formed or held.

Power is shared in this way between the federal government and the states, which are

governed by the basic laws of the federal state. The federal state is a system of government

that deliberately makes it difficult for the central government to alter the powers of the

states. Therefore, between a federal State and a unitary State includes the pouvoir

constituent, which is the power to form basic laws and statutes.10 The power relationship

between the two governments (between the central government and local governments) is

constitutional in nature. The division of powers between the central government and

autonomous regional governments does not include legislative and judicial powers because

it is only administrative in nature.

Third, government power can be further divided according to constituency. The

modal or horizontal division of power is that a broader body or 'chamber' in the legislature

can be created to represent a particular constituency or group in society and the presidency

represents another constituency. Assignments, processes, functions or constituencies to units

of government at the central level and to component regions may be made in whole or in

part.

Concept of Region-Based Power Sharing

Territory-based power sharing that originates from a source other than the

constitution can be revoked by that source or through constitutional provisions that can be

formally amended by constitutional amendment. The division of power between the central

government and regional governments in a unitary State is the same as the division of power

between state governments and regional governments in a federal State. Thus, the areal

division of power in a federal State, between the central government (federa) and the State

governments is done by constitution. Materially, the division of power between the central

government and autonomous regions in a unitary State and between the State and

autonomous regions in a federal State is only shared by the autonomous regions. The

division of powers between the federal government and the states in a federal state is

exclusive to each party and shared, called concurrence powers.

The relationship between the states and the federal government is independent and

coordinating, while the relationship between local governments and the center is dependent

and subordinate, similar to the relationship between states and autonomous regions.

According to Wheare, to get how the relationship between the center and local governments

in a unitary state can be used as a stepping stone by looking at the main characteristics of the

federal state.

The principle of a unitary State is that the affairs of the State are not divided between

the central government and local governments in such a way that one government body is

not allowed to interfere with the affairs of another. Thus, The affairs of a unitary State

constitute a whole, because the positions in the State organization which are supreme power

over the affairs of the State are vested in the central government.

Meanwhile, according to Frank P. Sherwood, the relationship between the local

government and the central government in a unitary State and the relationship between the

autonomous region and the State in a federal State is an interorganizational relationship.13

According to R. Tresna, Sherwood's view can be seen in its application in United States

through the enactment of Constitution No. 1 Year 1957. This is in line with Lord Acton's

view14 which states; power tends to corrupt, absolute power corrupts absolutely or humans

who have power tend to abuse it, and humans who have absolute power will certainly abuse

it.

The Constitution is a tool to limit the power of the State, which is realized in the

content material that is always contained or regulated in it. The limitation of power in the

form of power sharing is realized in the relationship of power between State institutions in

the format of horizontal division of State power and in the relationship between the center

and the regions (unitary State format) in the form of vertical division of power.

The vertical division of power (central and regional relations) in the NKRI format

does not make the sovereignty of the Republic of United States become divided, but remains

one, namely sovereignty lies in the Republic of United States. The power or authority that

exists in local government is the delegative authority of the central government. The central

government gets power and The authority to carry out the government is obtained

attributively and by the constitution or the Constitution of the Republic of United States. So,

this delegated authority does not necessarily bring in aspects of sovereignty in regions that

stand alone, apart from the bonds of the unity of the Republic of United States.

The development of constitutional studies in modern times has influenced the

analysis of the theory of State sovereignty, the theory of legal sovereignty, and the theory of

popular sovereignty. The study of these three theories of sovereignty has a special place for

jurists in developing their analysis. State sovereignty becomes a tool in the seedbed of legal

sovereignty, which seeks to realize the strengthening of popular sovereignty. Legal

sovereignty is symbolized in the form of the rule of law and popular sovereignty is

symbolized in the democratization of government. The interaction between legal sovereignty

and State sovereignty is realized in the symbolism of the current State, namely the

democratic State of law.15 For this reason, sovereignty is positioned as the concept of

supreme power in decision-making in the hands of the people of a State and legal

sovereignty is the supreme sovereignty to make laws as written law.

The study of legal science recognizes teachings or theories about sovereignty and

who holds the sovereignty.16 First, the teaching of the sovereignty of God, 17 which is

expressed in the absolute power of God in the administration of the State, God's power is

manifested in the form of the rule of law that must be obeyed by anyone and decisions based

on the power of the king who gets a direct mandate from God, this teaching is held and

developed by Augustine and Thomas Aquinas. Second, the doctrine of the sovereignty of the

king which emerged after the period of secularization of the State and law in Europe. Third,

the doctrine of the sovereignty of the State, which is the antithesis of the doctrine of the

sovereignty of the State.

The absolutism of the king's power and the emergence of the concept of the nation

state in the development of the State in Europe. Fourth, the doctrine of legal sovereignty,

which assumes that the highest source of power in the State is the law, all people and the

State must be subject to the law. Fifth, the doctrine of popular sovereignty, which asserts

that it is the people who have supreme power in the State because the will of the people is

the source of power in organizing the State or government.

Sovereignty as the concept of supreme power in its implementation touches the

problem of the decision-making process. This decision-making concerns the range of

sovereignty (domain of soveregienty) through a realist analysis between soveregienty and the

subject, which is related to who holds the highest power in a State and what is the object or

target in the application of that power.

From the philosophy of the State form, there are two basic patterns of division of

power and authority used, namely: First, the pattern of general competence or open and

arrangement, which is called broad autonomy, namely the affairs carried out by the central

government are limitative and the rest (residual affairs) become the authority of local

governments. In a federal state, the limitation of the power or authority of the central

government to carry out government affairs is explicitly stated in its constitution, while in a

unitary state it is stated in the law or lower legal rules. Second, the pattern of ultraviles or

limited autonomy is that regional affairs are determined in a limitative manner (limited) and

the rest becomes the authority of the central government. This restriction is made in a law or

government regulation.

United States is a unitary state, whose government is divided into central government

(Central Government) and subnational government (Provinces, Districts and

Cities).Sovereignty is not divided into other government units (Regions), therefore, local

government units do not have the power or authority to form basic laws and laws, as well as

compile their own government organizations. The existence of local government units is

dependent on (dependent) and under (subordinate) the government. This is the basic

principle of a unitary State, as a whole and not separated. The division of authority or power

and the context of unitary and federal States is carried out by two kinds of legislative

processes, namely through constitutional legislation (oinstitutional legislation) which can be

used in the federal system and through ordinary legislation (outlined in local government

laws), which can be used in unitary States.

Timur Mahardika argues that in every law on local government in United States,

there is always a tug of war between central and local relations in the field of authority and

resources. The distribution of political authority in several developing countries is caused by

the unwillingness of individuals or organizations to relinquish the authority in their hands.

This is influenced by conflicts between national political elites and regional political elites,

resistance from senior bureaucrats whose authority will be decentralized, conflicts between

various departments, bureaucratic professions, interest groups, and so on.

Jimly Asshiddiqie explained that in the framework of regional autonomy policy,

decentralization of authority that had been centralized in the hands of the center was carried

out. In the decentralization, the power of the central government is transferred to local

governments so that a shift of power from the center to the regions is realized districts and

cities throughout United States.19 So, do not just focus on the agenda of transferring

authority from the central government to local governments, but it is necessary to pay

attention to the transfer of authority from the government to the community, because

regional autonomy is actually community autonomy, which is expected to encourage the

development of initiative, independence, and a climate of democracy in the regions.19

Understanding the concept of division of power or authority in the implementation of

government in a unitary state can be used three approaches, which are regulated in the

details of authority to local governments and the rest to the central government. Second,

general competence, which is studied according to the division of authority to the regions is

general and the rest of the authority is in the central government. This will give birth to

central government affairs and provincial government affairs and the rest is the business of

district and city governments. Third, mixed, which is studied according to the division of

authority to the regions is a combination of ultarviles with general competence.

The division of authority or power by using ultraviles is that all regional affairs

become mandatory and must be accompanied by minimum service standards, while if using

general competence, mandatory and non-mandatory affairs will appear. Mandatory affairs

are determined on the basis of the characteristics of basic service affairs, while non-

mandatory affairs mean affairs that are in accordance with the needs or other affairs such as

the affairs of regional affairs.

Purpose of the Division of Powers

The purpose of the division of powers is to prevent the accumulation of power in the

hands of one person and to further enhance the guarantee of human rights, hence the

existence of a judicial body is nothing but a guarantee for the implementation of these

human rights. This means that the judiciary should not be subject to interference from either

the executive or the legislature, or even the influence of individuals.

According to Doner, the trias politica is based on the different forms of various

kinds of ruling actions, including two different parts, namely the field that determines the

goals to be achieved or the tasks to be carried out and the field that determines the

realization of the goals or tasks that have been set. The two spheres are closely related to

each other in two stages. The first stage determines the direction that the State should take in

its life, this stage is called the political field, while the second stage is the implementation of

the policies that have been decided in the political field, this stage is called the field of

government (bestuur), which no longer determines the direction that the State will take.

For the first field, it is called politics, so Hans Kelsen divides political wisdom in two

meanings, namely politics as athic, meaning choosing a goal to be achieved and in this case

it is the same as determining the purpose of the State, and politics as a technique, meaning

how to achieve this predetermined goal.20 Meanwhile, Van Vollen-hoven21 argues

differently, arguing that carrying out the duties of the State can be divided into four

functions, namely called caturpraja, namely regeling (making rules), bestuur (government

in the narrow sense), rechtspraak (adjudication), and politie (police).

Concept and Theory of Separation of State Powers

History of Separation of Powers

If we describe the fundamental principle of constitutional monarchy as "separation

of powers". The functions that were originally united in the person of the monarch were not

"separated" but each of them was divided among the monarch, the parliament and the courts.

The legislative, executive, and judicial "powers," which are regarded as the principle of

separation, are not three logically distinct functions of the State but are competencies

historically acquired by parliament, the king, and the courts in constitutional monarchies.

The historical significance of the principle of so-called "separation of powers" lies precisely

in the fact that it functions against a concentration of power, rather than as a separation of

powers. The supervision of the legislative and executive functions by the courts means that

the legislative, executive and judicial functions are fused within the competence of the

courts. Thus, it implies that legislative and executive power is shared between the legislative

and executive organs on the one hand, and the courts on the other.

Likewise, the king's participation in law-making means that his competence covers

both legislative and executive functions, and that legislative power is shared between the

king and parliament. The fact that, in a constitutional monarchy, the head of the executive

department is not responsible to parliament, is a feature of absolute monarchy and not an

application of the principle of separation as it tends to be. It was thought to be, in fact, a

principle of power-sharing. A concession to this principle was the provision that the king's

acts had to be co-signed by his cabinet ministers who were accountable to parliament. Thus,

parliament, although a legislative organ, had the power to control the government.

Separation of Powers and Democracy

The separation of powers proposed by Suny using the Wade and Philips measure

asks the question of whether the same persons or bodies are part of both executive

legislatures the following question is whether the legislature controls the executive, and the

executive controls the legislature. Whether the legislature performs executive functions and

the executive performs legislative functions based on these criteria. Suny concluded that

separation of powers in the material sense does not exist and has never been implemented in

United States, what exists is separation of powers in the formal sense. This shows that in

United States there is a division of powers with no separation. Soepomo has expressly made

the theory of trias politica included in the Constitution meanwhile, according to Attamimi,

the use of terms derived from the teachings of Montesqueu in the explanation of the 1945

Constitution such as legislative power executife power, and so on does not mean that the

1945 Constitution adheres to these teachings. Likewise, kunardi concluded that the

Constitution does not adhere to the principle of separation of powers, the number of State

organs set out in the 1945 Constitution is more than three so that the possibility arises that an

organ has more than one function or vice versa.

Such a system does not necessarily arise without an understanding of constitutional

teachings. The 1945 Constitution does not explicitly separate the three powers as desired by

Montesquieu. In accordance with Jennings' theory, the 1945 Constitution recognizes the

separation of powers in a formal sense, because the separation of powers is not maintained

in principle, in other words, the 1945 Constitution only recognizes the division of powers,

not the separation of powers.

3 Power Distribution Theory

According to constitutional theory, there are two kinds of distribution of power in a

State, namely vertical and horizontal distribution of power. Vertical distribution of power

teaches about the division of power between the central government and local governments,

which mostly appears in the form of theories about federalism or regional autonomy.

Meanwhile, the horizontal distribution of power discusses the division of power at the

central level as well as at the regional level, namely the division into the legislative,

executive and judicial fields, or what is called the trias politica theory.

As explained by Montesqueiu, a government has three powers, namely the power of

formulation (making laws), the power to implement laws, and the power to adjudicate

according to laws. These three powers should be vested in different parties, primarily to

ensure that the rights of the people are not violated. The accumulation of these three powers

in one hand is dangerous and can lead to inefficiency, corruption and arbitrariness. This has

long been recognized in legal history. Aristotle once argued for a constitutional government.

Even in the course of classical legal history, in various parts of the world there has been a

system whereby when a king or military leader was asked to adjudicate a case by his

subjects, then The officials will adjudicate by removing all the symbols of duty and

greatness that are on their bodies. This already indicates that although the people are the

same, their position in judging is different from their position when judging is different from

their position when ruling or carrying out their daily duties.

A classic pattern of division of power between State institutions has actually also

been found in ancient Greece. In the past, Aristotle had already tried to explore the pattern

of division of power by comparing as much as 186 city states (polis) found in Greece in his

book politiea. Although only one of Aristotle's investigations can be recovered, that of the

constitution of the city of Athens. The city-state was a kind of Singapore or the Vatican that

exists today, where in Singapore, there is a division of power and the system of government

is more democratic, while in the Vatican, all power is in the hands of the Pope. And, in the

Greek city-state, enormous power also rested with the king, hence the saying: Princep

Legibus Solutus Est, Salus Publica Supreme Lex, which means that the king has the right to

determine the structure of the State, because he is the highest lawmaker. Even in Rome,

which also imitated many democratic and constitutional practices from Greece, there was a

time when the people made a treaty with Caesar, in the name of the treaty, the power of the

people was transferred to Caesar absolutely (translation empirii), as referred to in Lex

Regia.

Conclusion

Sovereignty as the concept of supreme power in its implementation touches on the

issue of the decision-making process decision. This decision-making concerns the range of

sovereignty (domain of sovereignty) through a realist analysis between sovereignty and the

subject, which is related to who holds the highest power in a State and what is the object or

target in the application of that power. From the philosophy of the State form, there are two

basic patterns of division of power and authority used, namely: First, the pattern of general

competence or open and arrangement, which is called broad autonomy, namely the affairs

carried out by the central government are limitative and the rest (residual affairs) become the

authority of local governments. In a federal state, the limitation of the power or authority of

the central government to carry out government affairs is explicitly stated in its constitution,

while in a unitary state it is stated in the law or lower legal rules. Second, the pattern of

ultraviles or limited autonomy is that regional affairs are determined in a limitative manner

(limited) and the rest becomes the authority of the central government. This restriction is

made in a law or government regulation.

United States as a unitary State, whose government is divided into central

government (Central Government) and subnational government (Provinces, Districts and

Cities) sovereignty is not divided into other government units (Regions) therefore, local

government units do not have the power or authority to form basic laws and laws, as well as

compile their own government organizations. The existence of local government units is

dependent on (dependent) and under (subordinate) the government. This is the basic

principle of a unitary State, as a whole and not separated. The division of authority or power

and the context of a unitary and federal State is carried out by two kinds of legislative

processes, namely through constitutional legislation (oinstitutional legislation) which can be

used in a unitary State federal system as well as through ordinary legislation (embodied in

local government laws), which can be used in a unitary State.