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 : muhyusuf.fattah@gmail.com

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