ANALISIS HUKUM PASAL 37 AYAT (5) UNDANG-UNDANG DASAR NEGARA REPUBLIK INDONESIA TAHUN 1945 DALAM PERSPEKTIF AMANDEMEN TERHADAP KONSTITUSI DI INDONESIA

Abstract

The existence of Article 37 paragraph (5) of the 1945 Constitution of the Republic of
Indonesia becomes interesting to be discussed in the academic space due to its contents which
maintain the form of a unitary state as something that cannot be changed (unmendable provision).
The formulation of these norms was actually inseparable from the historical aspects that colored the
mystical atmosphere (gestlichen hintergrund) at that time, starting from the BPUPKI session which
expressed the views of various figures to the meeting to amend the 1945 Constitution of the
Republic of Indonesia which was amended four times from 1999-2002. Therefore, regarding the
form of the state which is basically a great topic that is debated, it needs sufficient attention both
from an academic and legal perspective. This has become a special interest for the author to
conduct further research on it.
This research is a normative legal research. This is based on library research which takes
quotations from reading books, or supporting books that are related to the problem to be studied.
Primary, secondary and tertiary data sources are characteristic of this study. This study also uses
qualitative data analysis and produces descriptive data.
From the results of the research conducted, there are several conclusions obtained, namely:
First, the formulation of article 37 paragraph (5) of the 1945 Constitution of the Republic of
Indonesia is only a political resultant that can be changed according to the agreement and will of
the wider community. The interpretation of the constitution that has been carried out has succeeded
in describing that there are various historical and sociological factors in maintaining the form of a
unitary state as the choice of the form of state that we adopt. Second, the perspective of changing
the constitution carries a juridical and theoretical implication that the term clause that cannot be
changed is only a political resultant, therefore, making it final and absolute and cannot be changed
is a violation of the will of the constitution which is amended based on the will of the people.
Therefore, the history of law becomes the rationale for describing and contextually explaining why
the form of the state cannot be changed. Efforts to amend the constitution should not recognize the
term finality for something that cannot be changed and contested. This can happen as long as the
public wants it.
Keywords: Constitutional Amandement – Unamandable Provision