Finally, Indonesia's own `First Amendment'<\/p>\n
By Endy M. Bayuni<\/p>\n
JAKARTA (JP): After surviving intact for more than 54 years,
\nthe 1945 Constitution underwent some modifications this year.<\/p>\n
The changes to the Constitution, which to its staunch
\ndefenders, including the Indonesian Military (TNI), would have
\nbeen unthinkable only two years ago, came peacefully after going
\nthrough a considerable democratic and transparent process.<\/p>\n
Indonesia's First Amendment, however, is not about freedom of
\nspeech, freedom of the press, freedom of assembly or freedom of
\npracticing one's religion, the way the term \"First Amendment\" has
\ncome to be popularly known in the United States.<\/p>\n
The First Amendment to the 1945 Constitution is a series of
\nchanges affecting the powers of the president. A product of the
\nGeneral Session of the People's Consultative Assembly (MPR) in
\nOctober, it reflects the immediate concern of the Indonesian
\npeople after decades of tyrannical rule: curtailing the powers of
\nthe head of state which, for most of the past 54 years, have been
\nwidely abused by the holders.<\/p>\n
Sukarno, Indonesia's first president, from 1945 to 1966, and
\nSoeharto, president from 1966 to 1998, used, or abused, the 1945
\nConstitution so effectively to strengthen and sustain their grip
\non power. Each managed to rule for long periods of time, almost
\nunchallenged. Those who tried to challenge them were branded
\n\"unconstitutional\" and were therefore, to use Soeharto's famous
\nand favorite expression, \"clobbered\". Even B.J. Habibie, the
\ntransitional president between May 1998 and last October, did not
\nescape from accusations of abusing the powers vested on him by
\nthe Constitution. But unlike Soeharto, Habibie did not enjoy the
\nsupport of the military. He failed, and lost the election in
\nOctober to Abdurrahman Wahid. Thus Gus Dur, as the Muslim cleric
\nis popularly called, is Indonesia's first president whose many
\nconstitutional powers have been clipped.<\/p>\n
To some people, particularly those in the press, there is a
\nnevertheless strong and valid reason for wanting to strengthen
\nthe constitutional guarantees of people's rights to free speech,
\nfree press and free association. The Constitution is ambivalent
\nwith regards to these rights: It recognizes them as basic rights
\non the one hand, but on the other it states that they have to be
\nregulated. This, as the experience of the 32 years of the
\nSoeharto regime has shown, opens the Constitution to many
\ninterpretations. Soeharto's interpretation was that these
\nconstitutional rights are subject to government controls \"in the
\ninterest of the public\". Even the shortlived Habibie regime
\ncolluded with the military to push the law on freedom of
\nexpression in 1998, which, again taking its cue from the
\nConstitution, limited the people's right to express themselves in
\nstreet protests. When one considers that both Sukarno and
\nSoeharto were removed from power by the force of the \"people's
\npower\" in 1966 and 1998 respectively, it is easy to understand
\nwhy Habibie was so keen on enacting the law.<\/p>\n
All is not lost however, since this MPR continues to work,
\nunlike the previous ones which only convened once every five
\nyears to elect the president and vice president. The MPR has
\nestablished a working committee, whose tasks include looking into
\nother proposals to revise the 1945 Constitution.<\/p>\n
The First Amendment, as the set of changes is officially
\ncalled, was nevertheless a big step for a nation that only a few
\nyears ago regarded as treacherous or subversive those who wanted
\nto modify the country's basic law, let alone replace it.<\/p>\n
During the 32 years of Soeharto's tyrannical regime, many were
\nkilled or went to jail for even entertaining such thoughts. The
\nArmed Forces, or ABRI as it was then known, even prided itself on
\nassuming the role of the guardian of the Constitution. Once it
\nhad taken this posture, it justified any action it took, no
\nmatter how oppressive, in the name of defending the Constitution.<\/p>\n
Publicly, the defenders of the 1945 Constitution, including
\nABRI, kept warning the public that the country's basic law and
\nPancasila ideology were under constant threat from the left --
\nmeaning the communists -- and the right -- meaning Islamic
\nmilitants. They continued to rally public opinion to come to the
\ndefense of the Constitution, which they insisted that in the
\noriginal form was the only way that this diverse nation could be
\nkept united.<\/p>\n
They forged a \"national consensus\" to pledge to keep the 1945
\nConstitution intact, introducing laws that made it next to
\nimpossible to change it, such as by requiring that any change to
\nthe document must follow a referendum which only the president
\ncould call. Keeping the Constitution in its original form was
\nalso force-fed on all government and public leaders who took part
\nin the Pancasila indoctrination programs. There was no room for
\ndisagreement, even in public discourses. Many of those who
\nentertained the idea went to jail, or worse, were killed.<\/p>\n
While proclaiming that they were doing this in reverence to
\nthe country's founding fathers, members of the Soeharto regime
\nhad in fact deviated from the spirit even the conceptors showed
\nwhen they drew up the Constitution in 1945. Article 37, last in
\nthe document, clearly states that the basic law could be amended,
\nwith the support of at least two-thirds of the members of the
\nMPR.<\/p>\n
The real reason why the rulers resisted changes was not so
\nmuch because of the threats from the left or right, which
\nprobably existed in some form at one time or another, but because
\nthe document in its original form served them well in sustaining
\nand enhancing their power. This was true in the case of Soeharto,
\nwho tirelessly cited the Constitution as forming the basis of his
\npower, the reason for his taking of power from Sukarno in 1966,
\nand even the reason for his resignation on May 21, 1998. In
\nbetween, he used the Constitution as a tool to \"clobber\" critics
\nand detractors, and resorted to the Constitution every five years
\nto ensure his reelection for 32 years.<\/p>\n
The 1945 Constitution, in the original form, while vague,
\nclearly invests a tremendous amount of power on the head of
\nstate. The first two presidents fell for the temptation and
\nsought to stay in power. If Sukarno maneuvered himself to become
\n\"president for life\", Soeharto almost became known as the
\n\"president till death\", which was a real prospect if he had not
\nbeen forced to resign in 1998.<\/p>\n
Given the nation's traumatic experience of the abuse of power
\nby its two first presidents, it stands to reason that one of the
\nfirst things that was done once Soeharto was out of the scene was
\nto try to change the Constitution. That required a real effort
\nsince many people in this country had been deeply indoctrinated
\nto treat the 1945 Constitution as an almost sacred document. Many
\nwho took part in the independence struggle in the late 1940s also
\ndeveloped an emotional attachment to the basic law. Like the
\nstate ideology, Pancasila, and the national red-and-white flag,
\nto many people the 1945 Constitution is sacred.<\/p>\n
The biggest change brought about by the First Amendment is
\nthat a president can only serve for a maximum of two five-year
\nterms. That has essentially preclude the emergence of another
\ndictator, no matter how good or bad, reigning the country for
\nwhat seemed like endless times. The other major change is that
\nthe president can no longer make laws alone. He now has to share
\nthis prerogative with the House of Representatives.<\/p>\n
It has taken the nation more than a year of lively, open and
\nat times passionate debate before a decision was made to amend
\nthe Constitution in October. A milestone in the nation's modern
\nhistory, the amendment was overshadowed by the first truly
\ndemocratic election of the country's president. While
\nAbdurrahman's election was important, amending the Constitution
\nwill likely have a more far reaching impact on the nation's life.<\/p>\n
Indonesia's version of the First Amendment may fall short in
\nterms of guaranteeing people's freedom but it has at least opened
\nthe gates, and indeed broken them down, for even more revisions
\nin the future. Where Indonesia is heading now is still an open
\nquestion. As the nation reviews the Constitution, there are now
\neven demands to replace the country's unitary system of
\ngovernment with a federal system, a move which many believe would
\nrequire the nation to adopt a completely new basic law. In
\ndemocracy, everything is debatable, and nothing, not even the
\nConstitution or the system of government, is too sacred to talk
\nabout. And as Indonesia's experience with the First Amendment
\nshowed, democracy ensures that changes, if and when they do
\nhappen, occur peacefully.<\/p>",
"url": "https:\/\/jawawa.id\/newsitem\/finally-indonesias-own-first-amendment-1447893297",
"image": ""
},
"sponsor": "Okusi Associates",
"sponsor_url": "https:\/\/okusiassociates.com"
}