Furthermore, Thomas Paine as quoted by Charles that “A constitution is not act of a government, but of a people constituting a government.” Paine emphasized that what forms the government is the people through the constitution.[3] The formation of government based on the constitution is based on the Theory of People's Sovereignty which states that the highest agreement of the people gives birth to the state and government. The use of the word "people" in state administration practices actually uses a representative sovereignty system, not all elements of the "people" participate in the formation of the constitution.

The Controversial Historicity of the Indonesian Constitution

The formation of the first Indonesian constitution was historically preceded by the formation of a draft constitution by a team chaired by Soepomo. The results of the team's draft were submitted to BPUPKI on July 13, 1945, which was then approved on July 16, 1845 to be used as Indonesia's positive constitution.[4] The constitution which was ratified the day after the proclamation is presupposed as a result of people's sovereignty because it is almost impossible to require all or at least the majority of Indonesian people to agree to form a constitution.

With the paradigm that the people's agreement gives birth to the state and government, then no country does not have a constitution. In fact, according to Mueller, even a dictatorial government has a constitution. “A constitution can be thought of as the set of rules that define a community’s political institutions. By this definition all communities, even dictatorship, have a constitution.”[5] This can be seen from the historical fact that even dictatorial countries, such as Germany when it was controlled by the Nazi Party, have a direction for their legal politics which is determined by the constitution.

The practice of Indonesian constitutional law, especially in the past, was once authoritarian and totalitarian, both of which political and legal styles emerged even under the auspices of the constitution. During the Old Order (Orma), especially after the fall of liberal-parliamentary democracy, the government implemented an authoritarian political course. At that time, President Sukarno forced the re-enactment of the 1945 Constitution with Presidential Decree of July 5, 1959 because the Constitutional Assembly was considered to have failed to draft a new constitution to replace the 1950 UUDS. Regardless of the controversy regarding the legitimacy and validity of the decree because the DPR only ratified the decree by acclamation on July 22, 1959, the factors behind its re-enactment are interesting to explore.[6]