Constitutional change: Learning from history<\/p>\n
Edward Schneier, Professor of political science at the City
\nCollege of New York teaching at Jakarta's Institute of
\nGovernment Studies, Jakarta<\/p>\n
Although there is growing agreement that substantial changes
\nin the Indonesian Constitution are needed, there is no consensus
\nas to who should act first and how. Predictably, the president
\nhas proposed a commission, which presumably she would appoint;
\nthe leadership of the People's Consultative Assembly has
\ndesignated its own legislative committee; and a coalition of
\nreform groups has proposed a commission of experts comprised
\nlargely of scholars and independent experts from these same non
\ngovernment organizations.<\/p>\n
None of these paths are likely to lead to meaningful change.
\nConstitution-making in countries like Great Britain, which has no
\nwritten constitution, the Scandinavian democracies and
\nSwitzerland, in which written constitutions evolved out of
\nlongstanding practices, has essentially been a process of
\nsolidifying existing unions.<\/p>\n
For newer or less homogeneous societies, the problem of
\nlegitimacy is both more complicated and more important. How can
\nconstitutional democracy in such societies acquire sufficient
\nlegitimacy to constrain and channel the methods of resolving
\nfuture conflict and protecting rights?<\/p>\n
Most governments are born in cataclysm: To the extent that
\nthey want to base authority in consent rather than force, the
\ngreater the need to cultivate the myth and imprint of popular
\nsupport.<\/p>\n
The first step toward achieving such support is to recognize
\nthat moments of constitutional magnitude transcend normal
\npolitics. Normal politics are for tinkering at the margins of
\nchange; constitutional moments are those that call for heightened
\nconsciousness, broader participation, and a willingness to look
\nbeyond the factional and party rivalries of here and now.<\/p>\n
A new government arising from the ashes of a discredited old
\nregime is doubly damned. It can build a foundation of legitimacy
\nneither on the ruins of the old order's discredited legal system,
\nnor on a claim that their current position of power is anything
\nmore than transitional.<\/p>\n
Constitutional moments frequently occur in the wake of
\nrevolution, the end of colonial rule, or with the fall of empire.
\nIf this is a constitutional moment for Indonesia, it comes -- as
\nfor the United States in 1789 -- not in the dawn following
\nfreedom, but in later day reflections of those who see the
\noriginal constitution's flaws.<\/p>\n
And the problem of gaining legitimacy is, for those who would
\nchange Indonesia today, much as it was for those who scrapped the
\ndecade-old Articles of Confederation in favor of what became the
\nConstitution of the United States.<\/p>\n
The American founding fathers did three things that
\nIndonesians might note. The first was to construct a
\nconstitutional convention that transcended the established
\nprocess.<\/p>\n
The flaw in the existing system that most needed change was
\nthe requirement that all acts of the Continental Congress --
\nincluding changes in the constitution -- be by unanimous vote of
\nall 13 states. The Constitutional Convention that convened in
\nPhiladelphia in 1787 simply by-passed this procedure.<\/p>\n
Despite its dubious legal origins, however, the Convention
\nincluded many of the new nation's most learned experts in law and
\nhistory, as well as seven present or former governors of various
\nstates, 28 members or former members of Congress; and, as its
\npresiding officer, the commander-in-chief of the Armies of the
\nRevolution, George Washington.<\/p>\n
They were a landed aristocracy well aware of its own
\nprerogatives, but they were also representatives of all the new
\nnation's diverse regional interests, and uncommonly able as a
\ngroup to transcend factional disputes and command public respect.<\/p>\n
The second defining characteristic of the American
\nConstitutional Convention was its determination to negotiate
\nwhatever compromises were necessary to produce a consensus
\ndocument. Some of these compromises were neither moral nor
\nenduring. Failure to confront the issue of slavery led
\nultimately to civil war, and the initial absence of a Bill of
\nRights was an oversight that even the founders felt a need
\nquickly to remedy.<\/p>\n
But the work of the convention in crafting a nation out of 13
\ndiverse states, of drafting a document that (Civil War
\nnotwithstanding) has worked for more than two centuries, was
\nreally quite remarkable.<\/p>\n
The third and perhaps most important characteristic of the
\nAmerican process was its self-imposition of downstream
\nconstraints. By subjecting its own work to a subsequent
\nratification process, the convention was constrained both by the
\nneed to achieve a consensus among the delegates and later to sell
\nthe product to a skeptical electorate.<\/p>\n
Sold as a package, the new Constitution had to balance the
\ninterests of small states and large, South and North, without
\noffending a diversity of ethnic and religious minorities.<\/p>\n
The risk in imposing downstream constraints is that the
\npressure to compromise may produce a constitutional system so
\noverloaded with checks on power that it is incapable of decisive
\naction. But a government without legitimacy is equally or more
\nprofoundly paralyzed, and the American system, while possibly
\noverloaded with checks and balances has shown itself capable of
\nworking effectively when it has to.<\/p>\n
Constitutions export poorly, but the processes of politics are
\nsimilar throughout the world. The American experience offers
\nimportant guidelines for Indonesia's would-be reformers first
\nthrough its emphasis on the importance of transcending usual
\npolitics to make constitution-building a discrete, consecrated
\nevent.<\/p>\n
Second, the constitution-making body should be charged not
\njust with amending existing articles, but of creating a 21st
\ncentury Indonesian polity. It should consult widely in this
\nprocesses, considering both the experiences of other nations and
\nthe dual perspectives of both partisan activists and more neutral
\nscholars.<\/p>\n
And finally, the product of their deliberations should be put
\nto the people. The risks that ratification poses -- especially
\nif the vote reveals and exaggerates regional divisions -- are not
\ninsignificant; but they are almost certainly outweighed by their
\nability to confer legitimacy and inspire confidence in the
\nincipient democratic regime.<\/p>",
"url": "https:\/\/jawawa.id\/newsitem\/constitutional-change-learning-from-history-1447893297",
"image": ""
},
"sponsor": "Okusi Associates",
"sponsor_url": "https:\/\/okusiassociates.com"
}