state responsibilities on the educational rights...
TRANSCRIPT
STATE RESPONSIBILITIES ON THE EDUCATIONAL RIGHTS OF INDONESIA BY THE CONSTITUTION
Muh.Yusuf1, Juajir Sumardi2, Faisal Abdullah2, Abrar Saleng2
1Fak. Keguruan dan Ilmu Pendidikan Unhalu Kendari 2 Fak. Hukum Unhas Makassar
Contact address :
MUH.YUSUF Fak. Keguruan dan Ilmu Pendidikan Unhalu Kendari HP. 081341720036 Email : [email protected]
ABSTRACT
One of the goals in the 1945 opening of the intellectual life of the nation, set out in article 31 of the 1945 Constitution, the government implicates the constitutional obligation to make it happen and be a constitutional right for every citizen. The purpose of the study, said the problem lies the normative purpose of educating the nation has not realized its full potential. The method of research is a normative legal / doctrinal with descriptive data analysis. 1945 Constitution, Article 31 Paragraph (1), Paragraph (2), Clause (3), Paragraph (4) and (5). Article 31 of the 1945 Constitution set the nation's intelligence perwujukan there is an ambiguity as subsection (1) In the event that the obligation to use two words, namely the government and the country as a legal subject, paragraph (2) Using the term education, national education systems, basic education, and science and technology, (3) Priority budget 20% of the national and regional budgets. State is morally obliged (responsibility) to fulfill any obligation and legally through the government if it does not meet the constitutional right to education for every citizen to realize one of the goals as set forth in the Preamble to the 1945 Constitution Alinia-4 is the purpose of educating the nation state must bear responsible for carrying out repairs (reparation) that arise when a country made a mistake to comply with legal obligations under international law known as strict liabiliti (absolute, semi, and or conditional). Besides the need for amendment of article 31 UUD 1945 with a reason to have a firmness word "mandatory for the country" against management / penyelengaaraan education system with international standards and the preparation of educational funding educational institutions operating costs with maximum co-financing pattern (cost sharing) between the government and community as a key element of state formation, and did not rule out a foreign party to the education (and full or semi / cooperation of the government and foreigners) so that educational goals are smart people more open to achieve.
Keyword: Education, rights, obligations of the Constitution
INTRODUCTION
If the gates of the country through the establishment of a proclamation, then the
intelligence establishment gate educational life of the nation is planned and measurable.
A primary and secondary education quality required to get into a good college. A good
college education is required to get a good job. A good job is necessary to pursue your
dreams and live the life of every human being, both men and women who want a better
life. Education is first and fundamental requirement that must be met. One of the
objectives of the Indonesian state in the Preamble to the Constitution (UUD 1945) or
(constitution) shall be: ... the life of the nation .... "(Preamble of the 1945 Constitution
para 4).
In the simplest sense, the constitution is a document that contains the rules for
running an organization (Thompson, 1997). Organization is various forms and the
complexity of its structure, ranging from student organizations, associations of people in
certain areas, trade unions, civil society organizations, political organizations, business
organizations, social gatherings up to world level organizations such as the Society of
ASEAN, the European Communities (EC) , World Trade Orga-nization (WTO), United
Nations (UN), and so on all require basic document called a constitution. (Asshiddiqie,
2008).
Similarly the state, in general always have a script called constitution or Basic Law
(Constitution). Even countries that do not have a script like the British constitution, still
have rules that grew into the Constitution in the constitutional and practical experience
of the experts still can be called a constitution in the context of constitutional law, a
body of laws, customs and conventions that define the composition and powers of the
organs of the State and that Regulate the relations of the various State organs to one
another and to the private citizen (Phillips, et all. 1987).
1945 Constitution, Article 31 Paragraph (1) Every citizen has the right to
education: Paragraph (2) Every citizen shall attend compulsory elementary education
and government finance, as well as Paragraph (3) The Government shall establish and
conduct a national education system, which increases the faith and piety and moral
values in order to educate the nation, governed by the Act, Section (4) State budget
prioritizes education to at least twenty percent of budget revenues and expenditures, and
budget revenue and expenditure to meet the needs of national education. Paragraph (5)
government to advance science and technology with upholding religious values and
national unity for the progress of civilization and prosperity of mankind.
In this chapter suggests that the right to education for every WN {subsection (1)}
to be smart funded by the government is limited to primary education. The national
education system and seek only government organized a {subsection (3)} with the
priorities set by the state budget 20% of the state budget, budget (provincial, district and
municipal) {subsection (4)}, and the government advance, Science and Technology
{subsection (4)}.
Article 31 of the 1945 Rules is in realizing the nation's intelligence: (1) In the
event that the obligation to use two words, namely the government and the country as a
subject of law, (2) Using the term education, national education systems, basic
education, and science and technology, (3 ) Priority budget 20% of the national and
regional budgets.
This is in line with research, legal arrangements, outlines the form and find the
model of local government responsibility for the legal protection of children's rights in
education, legislation approach, conceptual, theoretical and philosophical (Jasin, 2010).
Implementation of local government functions in the field of education has not gone
oftimal, the cause is a. egos areas that the program in the field of education is not
obligatory which are mandatory. b. availability portion of the budget and the financial
ability of the district /city. c. political will of the local government, because not all areas
have the priority on education, in addition to government affairs given to the
government and district / city governments (Haba, 2010). Similarly related to state
responsibility, Legal Aspects of Implementation of Local Government Functions In the
field of Education Organization Regional Autonomy Era That: Law 32/2009 clearly set
by the state and corporate responsibility to the environment. "Responsibility is the extent
set forth in the text, but are not able to implement even enforced. Thus, in this case a
wake paradigm that corporate responsibility and limited government in discovery and
legal establishment has not touched the implementation and enforcement of the law ",
(Suharto, 2010).
Over 67 years after Indonesia's independence, led to the question, whether bagsa
Indonesia are smart? If the answer it or not. if not smart, no matter where, whether at the
level of normative derived from the constitution, or at the level of executive.
Education is first and fundamental requirement that must be met. Therefore the purpose
of this dissertation research is (1). For researching, reviewing, analyzing, and responding
to the model state responsibility for education based on the 1945 Constitution. (2) To
investigate, examine, analyze, and respond to issues that can make the education system
Indonesian citizens able to compete. (3) To investigate, examine, analyze, and respond
to issues of education regulatory arrangements by the 1945 Constitution in Southeast
Sulawesi province. Of the three research objectives above, in the end the ultimate goal
of This research is to find answers to the truth is the essence of the constitution as the
supreme law embodied the basic principles of the state especially the catalog of human
rights education as a fundamental right that must be met by the state.
Indicators to measure memenuhuhi educational obligations under the ICESCR are:
1. Availability (availability), 2. Accessibility (accessibility), 3. Acceptability
(acceptance), and 4. Adaptability (ability to adapt), (Kalantry, et al, 2011)
The research method used in this paper is the normative legal research methods /
doctrinal by collecting primary data, secondary, and tertiary through the documentation,
and empirical legal research methods by collecting data through documentation,
interviews, and observations with descriptive analysis.
DISCUSSION
Developed sense of Constituent power is also about understanding the legal
hierarchy (hierarchy of law). The Constitution is a higher law or even the highest and
most fundamental nature, since the constitution itself is the source of legitimacy or
authorization forms the basis of law or regulations of other laws. In accordance with the
principle of universal law, then in order to rank regulations under the Constitution can be
valid and enforced, those rules must not conflict with the higher law.
The basic elements of the existence of a nation in the eyes of international law. 1. The
existence of a permanent resident (a permanent population) 2. Having a clear zone (a
defined territory), 3. The existence of government (a government), 4. The ability to
cooperate with other countries (a capacity to enter into relations with athor states).
Position of the 1945 Constitution of Indonesia as a result of an agreement that all
the people of Indonesia are higher than other prundangan regulations. Validity of the
1945 Constitution is based on the legitimacy of the sovereignty of the people so that the
1945 Constitution is the highest law in the life of the nation. In connection with the
terms Constituent power, comes a sense of Constituent act. In this connection, the
constitution considered a Constituent act, not a product regular legislative rules
(ordinary legislative act). Constituent power precedes the constitution, and the
constitution precedes organ of government regulated and established by the Constitution
(Asshiddiqie, 2008), a written constitution is the instrument in roomates a constitution is
embodied proceeds from a source different from that whence spring other laws, is
regulated in a different way, and exerts a sovereign force. It is enacted not by the
ordinary legislative authority but by some higher and specially empowered body. When
any of its provisions conflict with the provisions of the ordinary law, it prevails and the
ordinary law must give way (Bryce, 1901)
The four elements by Mulyadi that a basic element of the existence of a nation in
the eyes of international law. Besides the four elements, the doctrinal opinion in Adolf,
in addition to the four elements are added again the existence of a state can be held
accountable for the actions of its officials against those of other countries, and countries
should be free. Related to the responsibilities of the state that: Vrieties of responsibility
in the natural and fungtions of responsibility consists of (1) Hart’s taxonomy, (2) The
temporal element in responsibility, (3). Personal and vicarious responsibility. And (4)
Individual, shared and group responsibility (Cane, 2002).
Expressly provided for in Article 31 of the 1945 Constitution are:
1. In subsection (1) education is a right for every citizen. If so the question is which
institutions are obliged to fulfill it? In this verse there is no explanation.
2. In subsection (2) implied obligation of governments to the intellectual life of the
nation and must be followed by every citizen is a basic education funded by the
government. If so the question is, why is expressly limited to the basic education,
whether the government has considered if citizens have completed primary education
means it has intelligence. How to measure the amount of charge that the government
is prepared to basic education? Is the calculation of each society, or any institution of
basic education? Is the cost of government has been prepared to cover operational
costs to a minimum or maximum?
3. The national education system and the government organized a seek. In this verse
clear division of responsibilities between the government and the provincial
government, the city and county are not clear?
4. Budget priorities to be borne by the state 20% of the state budget, budget (provincial,
district and municipal)
5. Why education is not a country but government mismanagement? Not the purpose of
educating the nation state is the goal as set forth in the preamble of the 1945
Constitution. If so is there a difference if the state and the government take care of it.
ad. 1. In subsection (1) Education is a right for every citizen.
If so the question is which institutions are obliged to fulfill it? In this verse there is
no explanation. In the preamble of the 1945 Constitution was one of the intellectual life
of the nation state, so the consequence of the inherent meaning of the constitutional rule
of law on the one hand it is a constitutional right for every citizen, and on the other hand
the state is legally obligated to fulfill these rights.
Understanding Constituent power relating to the legal hierarchy (hierarchy of law)
as the law teringgi ranks and most fundamental nature as a source of legitimacy or
authorization forms the basis of law or regulations of other laws.
ad. 2. In subsection (2) implied obligation of governments to the intellectual life of the nation and must be followed by every citizen is a basic education funded by the government.
If so the question is, why is expressly limited to the basic education, whether the
government has considered if citizens have completed primary education means it has
intelligence. The gate of the establishment of the nation's intelligence life is education
planned and measurable. A primary and secondary education quality required to get into
a good college. A good college education is required to get a good job. A good job is
necessary to pursue your dreams and live the life of every human being, both men and
women who want a better life. Education is first and fundamental requirement that must
be met.
But only up to a firmness of such a basic education in the constitution, then the
organic regulations that every citizen aged seven to fifteen years of compulsory basic
education (Act No. 20 of 2003 Article 6 (1)). Reality as it is so as to give room for
obscured. Every person has the right to education. Education should be held in a free (of
charge), at least at a basic level. In addition, primary education should be compulsory,
education and technical expertise should be made generally be followed by devotees,
and higher education shall be equally accessible to all on the basis of eligibility (Article
1 of the Universal Declaration of Human Rights, 1948).
In the context of alignment with other countries, so it is true, but if in the context
of the purpose of education only in state basic education to be wrong, because the only
country that puts Indonesia rules Constituent intellectual life of the nation in power-
related legal hierarchy (hierarchy of law) as the law teringgi ranks and most fundamental
nature as a source of legitimacy or authorization forms the basis of law or regulations of
other laws. The general condition of the education sector in Indonesia is characterized
by the low quality of human resources (HR), about 58% of Indonesia's labor force
educated only elementary school (SD) or less. At the same time, only 4% of the
workforce is highly educated. Prospect of improving the quality of human resources in
the future also looks bleak. The average rate of participation further education and
higher education is still relatively low (56% for junior high, high school and 32% to
12% for college) (Priyono, 2011).
How to measure the amount of charge that the government is prepared to basic
education? Is the calculation of each society, or any institution of basic education? Is the
cost of government has been prepared to cover operational costs to a minimum or
maximum? National education funding are developed based on the rules and regulations
in force, the policy minister, educational development programs and targets, as well as
the implementation of the program in the dimensions of space and time. In the next five
years, the implementation of educational development programs will continue to face a
variety of limited resources, both infrastructure, energy, education and the budget of
both the state budget and budget resources. Therefore, the financing strategy designed to
get around the limitations of these resources for the implementation of development
programs of education can contribute significantly to the achievement of national
education goals as mandated by Act No. 20 of 2003.
Given the limited government budget for education, national education financing
strategy in the next five years are arranged in priority. Determination of educational
development priorities based on (a) government partisanship on children from
disadvantaged families due to economic factors, geographical, and socio-cultural, to
obtain quality education, (b) priority claims because of changes in education policy,
included in the fulfillment of the constitutional rights of citizens in each unit, levels and
types of education in both formal and informal, and to respond to international
commitments and national interests, and (c) predicted the development of the financial
capacity of the state and the potential contribution to the education community.
Still the schools in Kendari, Southeast Sulawesi, which must borrow to finance the
implementation of the final exam, provoke strong reactions and concerns of the council.
Chairman of Commission III Kendari Parliament, looking at a case like this proves that
the world of education in the city was very low, especially in terms of budget
management (Alwi, 2012)
ad. 3. Government's national education system shall manage and organize.
In this verse the word assertiveness is not clear division of duties and
responsibilities between the government and the provincial government, the city and
county are not clear.
Furthermore, the division of governmental affairs education has been regulated in
the PP attachment. 80 of 2007. Division of Education as follows: Sub Sector, Sub Sub
Sector and Government Affairs Education Activity (Sub Sector Policy (Sub Sub Sector
Policies and Standards), Sub-Sector Funding, Curriculum Sub Division, Sub Division of
Facilities and Infrastructure, Sub Field Educator and Personnel, Education Sub Sector
Quality Control. (PP. 8 Year 2007)
Sub Sub Sub Field and Field of Education as provided in Appendix PP. 38 of 2007
has been pretty good and detailed. However, there are several settings that still need to
be strengthened and clarified. It is associated with provincial governments, district / city
that does not have borders with other countries more easily measure and apply the three
criteria pembangian affairs. One of them is internalitas criteria, for example in the case
of the Malaysian government ban on workers to school children in Malaysia. This
course will have an impact nationally because it deals with the relationship between the
state Indonseia and Malaysia, not between the West Kalimantan to Malaysia. In addition
to the problems faced by some of the border areas, especially land, education in the
border areas in general lagged behind other regions. At least it can be seen from several
portrait of education in the border provinces.
ad. 4. Budget priorities to be borne by the state 20% of the state budget, budget (provincial, district and municipal).
Any discussion of the state budget in the House is always sticking out of the
fulfillment of the budget allocation for education of 20% according to the 1945
amendment to paragraph 31 (a). In addition it has several times publicly and apply the
elements of Act State Budget (Budget) to the Court of Law No 26 of 2004 and Law
2005 State tetntang 13 of 2005 on the state budget for the 2006 budget. Background,
always refer to the state in the preamble of the 1945 Constitution: the intellectual life of
the nation.
Education is an important right of citizens of the nation with its primary
responsibility pedestal hands of the government. The education sector is considered
important to be prioritized for the nation. But the trouble is that in the National
Education System Law Article 49 Paragraph (1) states that the mandate of 20 percent of
the education budget does not include the cost of salaries of educators and service
education. Various options were put forward. But it is clear the education budget by 20
percent will be difficult to implement directly. This is of course the government has a
reason strong enough and fundamentally, why the state can not meet the policy of the
education budget is 20%. It should also be understood in the education budget allocates
20% of the budget is not a simple matter. Because we know that there keterbatasaan
budget to meet the ceiling. (Harefa, 2012).
This can be justified from one side. However, to be a fatal mistake when viewed
from the other side, that if you want to escape the poverty and ignorance certainly would
not want to have to prioritize (mandatory legal historians) educational issues. Problems
that often progressed in 20% of the education budget, the budget is a form of
constitutional law In government should immediately implement the decision of the
Court because the decision was a positive legal and binding. But people must also
understand the government's financial condition is also present. Fulfillment 20% of the
budget itself is not very relevant to the current Ministry of Education. The jump in the
total budget of more than 100% feared by many not be able to be absorbed by the
bureaucracy, planning, implementation and control in remote areas. However, it should
be careful to address this. One hand, the decision is encouraging, but what about the
Ministry of Education itself, is capable of absorbing, as long as it was feared that the
budget will lead to excessive spending unrelated to educational problems. Also still
unclear sectors, or any activity that should be included in the scheme of education
budgets are scattered in these sectors, the various departments and regions. This
condition needs explanation clearly to avoid mistakes inteprestasi what is meant by
education budget. (Harefa, 2012)
Act No. 20 of 2003 Article 49 paragraph (1) that the Fund other than salaries of
educators and education service education costs are allocated at least 20% of the State
Budget (Budget) in the education sector and at least 20% of the Revenue and
Expenditure (Budget) . In fact the local government for various reasons did not follow it.
The decision of the Constitutional Court related testing of article 49 paragraph (1)
of Law No. 20 Year 2003 on National Education System that led to the inclusion in the
calculation of teachers' salaries 20 percent of the education budget from the State Budget
(Budget) of Article 49 paragraph (1) of Law no. 20 of 2003 on National Education
System (Education Law) throughout the phrase "salary educators and" contrary to the
1945 Constitution. It was stated The Constitutional Court (CC) in the trial court decision
No. pronunciation. 24/PUU-V/2007. 2.
ad. 5. Why education is not a country but government mismanagement? Not the purpose
of educating the nation state is the goal as set forth in the preamble of the 1945 Constitution. If so is there a difference if the state and the government take care of it. There are two groups of understanding between the state and the government.,
There is a common understanding, and there is a different understanding, view the
author was in the group that did not differentiate. That duty is to protect the country and
the government's job is to run the state's responsibility. That is, as with any government
president, protection of rights must still be done. However, some see no difference is
very substantial between the state and the government said. What if the government said
there was no funding for the fulfillment of such education as mandated by the 1945
Constitution. What are the consequences if it does not disburse the funds? Or what
happens if the funds are disbursed, but inserted with a specific political purpose as the
government ahead of the elections on the grounds of limited funds? I ask my friends in
Indonesia and almost all say the same with the government. So if there is no state
funding, the government need not comply with the rules to protect .... The (Pipit, 2012)
If you see a German state, as the state social assistance is the right of citizens and
the state is responsible for it. For example, German Social Security Act (Article 97
through Article 100), paying dues is not dependent on the state and the ruling
government. The volume of social assistance each year was set in the Budget of
Germany. The government is to fill the state coffers and the government can not argue
that there is no social contribution fund. If learning from other European countries, or in
particular Germany, is the issue of public attention. Here we can see the extent to which
critical public of their rights but also to fully implement their obligations. "Many have
criticized the bill is to strengthen the government's position before the public. This
discourse seem trivial, but it has a very broad and related to other aspects of public (Ray,
2012)
CONCLUSION
State obligated morally and legally through the government fulfill the
constitutional right to education for every citizen to realize one of the goals as stipulated
in the 1945 Constitution Alinia to-4 that is the goal of the nation's intellectual life.
Morally (responsibility) has a requirement to fulfill. And beranggung country legally
liable for the obligation of a state to the make reparation arising from a failure to comply
with a legal obligation under international law. By definition, it can be interpreted that
the state's responsibility to make repairs (reparation) that arise when a country made a
mistake to comply with legal obligations under international law known as strict liabiliti
(absolute, semi, and or conditional)
The need for the amended Article 31 UUD 1945 on the grounds that it has the
firmness of the word "mandatory for the country" against management/penyelengaaraan
education system with international standards and the preparation of the operational
costs of education funding institution would involve pattern maximum co-financing
(cost sharing) between the government and community as a key element in the
establishment of state law, and did not rule out a foreign party to the education (full and
or spring/government cooperation and foreign) so that educational goals are intelligent
people more open to achieve.
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Undang-Undang Nomor 20 Tahun 2003 tentang Sistem Pendidikan Nasional UU nomor 20 tahun 2003 tentang Sistem Pendidikan Nasional Pasal 6 ayat (1) UUD Negara Republik Indonesia Tahun 1945 Attachment:
Table 1: Article 31 of the 1945 Rules
paragraph commentary
Citizens Government State The
entitlement to Obligation to follow obligations obligations
1 education √ 2. primary education √ Mandatory
funding
3 The national education system seek and
organized
4 budget priorities 20% of the state budget, budget (provincial, district and town)
5 Science's knowledge and technology Advance
Table 2 Distribution Authority Model of Government Affairs No. Based government
regulations. 38 of 2007 CRITERIA Based government regulations. 38 of 2007
LEVEL OF GOVERNMENT GOVERNMENT
PROVINCE CITY DISTRICT
Eksternalitas / dampak Cross provincial / national Cross County / City Local District / City Akuntabilitas / tanggung jawab Cross provincial / national Cross County / City Local District / City Efisiensi / daya guna More efficient if the
government More efficient when done provinces
More efficient when done district / city
Graphic 1: Model Fulfillment Responsibility Education for Every Citizen
Graphic 2: Educational System to Make Citizen Indonesia Able to Compete
Play Group
Kindergarten
Primary schools/
equivalent
Medium Schools First/
equivalent
The first High School / equivalent college
Play Group
Kindergarten
Primary schools/
equivalent
Medium Schools First/ equivalent
The first High School / equivalent
college
Fulfillment Model Responsibility Education for Every Citizen
1. Pemerintah 2. Pemda
Propinsi 3. Pemda
Kota/kabupaten 4. Kelompok
Partisipan
Human Right
to protect
To promote to
fulfil
Creating a culture of learning Application of Principle of Non-Discrimination Application of Principle of equilibrium Application of principle of legal certainty
Fulfilled the constitutional right to education
Availability Accessibility
acceptability
adaptability
Comparability
regulation education
Nation of
intelligent life
pillars (joints) education: learning to know, learning to do, learning to be, and learning to live together with to live others
Availability Accessibility acceptability adaptability Comparabili
ty
1. Pemerintah 2. Pemda Propinsi 3. Pemda
Kota/kabupaten 4. Kelompok
Partisipan
Education System to Make Indonesian citizen Able Compete regulation education
human right
to protect
To promote
to fulfil
Creating a culture of learning
Fulfilled the constitutional right to education
Nation of intelligent lifes
pilar (sendi) pendidikan : learning to know learning to do learning to be learning to live together
with to live others