The Constitutional Paradox in the 1945 Constitution of the Republic of Indonesia: A Legal-Philosophical Analysis of Citizens’ Political Rights and Representation through Political Parties
Abstract
Indonesia’s constitutional order recognizes political participation through provisions on popular sovereignty, equality in government, freedom of association and expression, and electoral representation. At the same time, the exercise of the right to stand for particular public offices is subject to constitutional and statutory nomination mechanisms, especially those involving political parties. This study examines the resulting tension between citizens’ political rights and institutionalized political representation from a legal-philosophical perspective. It employs normative legal research using statutory, conceptual, and philosophical approaches. Primary legal materials comprise the 1945 Constitution, legislation governing political parties and elections, and relevant Constitutional Court decisions; secondary materials include constitutional theory, legal philosophy, and recent scholarship on democratic participation. The analysis shows that political rights should be distinguished from the legal conditions governing their exercise: citizens are the bearers of political rights, whereas political parties and electoral institutions are legally constituted mechanisms for organizing representation. The study therefore proposes the concept of the Constitutional Political Rights Paradox to describe the tension that arises when institutional mechanisms intended to facilitate representation become conditions that substantially determine access to political office. The article concludes that constitutional representation should preserve the primacy of citizens as rights-holders while maintaining legitimate institutional requirements for electoral organization. This reconstruction clarifies the relationship between political rights, political parties, and popular sovereignty without treating political-party nomination requirements as extinguishing the underlying constitutional entitlement.
