Fine-tuning the 1945 Constitution<\/p>\n
By Charles Himawan<\/p>\n
JAKARTA (JP): The agreement reached recently by all factions
\nof the People's Consultative Assembly (MPR) to amend the 1945
\nConstitution reflects the members' statesmanship. The word
\n"amendment" itself, instead of "change," will automatically bring
\nus to the constitutional order of American political life. Many
\nlawyers and politicians have therefore suggested that we learn
\nfrom the example set by the Americans.<\/p>\n
Three lessons can be learned from the U.S. Constitution that
\nwas amended no less than 27 times in the last 200 years.<\/p>\n
The first: the Americans preserve their sacred document in a
\nbulletproof case that is lowered at night into a reinforced vault
\ndesigned to withstand a nuclear explosion. It is not sufficient
\nfor Indonesians to simply keep on shouting that the 1945
\nConstitution is sacred. We must show our concern through our
\nactions.<\/p>\n
Second, the U.S. Constitution is familiarized by displaying it
\nat the National Archives Building in Washington D.C. with an
\nestimated one million visitors annually, including elementary
\nschool children. Where is the original text of the 1945
\nConstitution displayed? How many visitors are there annually??
\nWithout familiarizing the document to the public, it is difficult
\nto create deference to the 1945 Constitution.<\/p>\n
Third, the U.S. Constitution has proved to be able to make
\nAmerica a superpower and the wealthiest nation in the world
\nalthough not without turbulence and cost of life. All these
\noccurred due to the amendment system. Modeled after this, the
\nstature of the 1945 Constitution could remain intact while it
\nwould be accommodative to the people's aspirations from one era
\nto another. Let us look at three simple examples.<\/p>\n
The Voting Right:<\/p>\n
It took the Americans 133 years from 1787 to 1920 to give
\nevery citizen the right to vote without regard to race, color and
\nsex. In 1870, Amendment XV extended the voting right to blacks
\nand former slaves, but it took another 50 years for women to be
\nable to vote nationally through Amendment XIX of 1920. The
\namendment system makes it possible to be responsive to modern
\ndevelopment.<\/p>\n
The Presidential Office:<\/p>\n
The American Constitution (Article 2 verse 1) determines that
\nthe president "shall hold his office during the term of four
\nyears, and together with the vice president, chosen for the same
\nterm ..." It took another 64 years to limit the serving time to
\ntwo terms (Amendment XXII, 1951). Indonesia has once also
\nexperimented with the issue.<\/p>\n
The Vice Presidential Office:<\/p>\n
In the event that the president cannot discharge his duties,
\nit was at first determined that the vice president "shall act" as
\npresident (Amendment XII, 1804). This was later clarified.
\nInstead of "shall act," the vice president "shall become"
\npresident (Amendment XXV, 1967).<\/p>\n
In regard to Indonesia, the MPR could, for example, initiate
\nthe following ideal amendments:<\/p>\n
First, decide that the 1945 Constitution is the Constitution
\nof the Republic of Indonesia, henceforth to be known as the 1945
\nConstitution (UUD '45);<\/p>\n
Second, decide that all MPR decisions are of the same level;<\/p>\n
Third, decide as in Amendment I that "a president will serve
\nfor a period of five years and may be reelected for another
\nterm".<\/p>\n
Fourth, decide as in Amendment II that "the vice president
\nwill become president if the president fails to exercise his
\nduty".<\/p>\n
Fifth, decide as in Amendment III that "the president and the
\nvice president could be removed from office by an impeachment
\nprocess";<\/p>\n
Sixth, decide as in Amendment IV that "an indigenous
\nIndonesian is an Indonesian citizen who is born in Indonesia, and
\nwhose father is also born in Indonesia".<\/p>\n
The American constitutional history cited above proves that
\nthe amendment system is an effective means for the sacred
\ndocument to accommodate the needs of an era, although it was at
\nfirst regarded as an experiment.<\/p>\n
The great American Supreme Court Justice Oliver Wendell Holmes
\n(1841-1935) observed, albeit in a different context, that "it is
\nan experiment, as all life is an experiment". Experimenting with
\nthe amendment system for the last 200 years has passed the test.<\/p>\n
Indonesian constitutional history itself has shown that the
\n1945 Constitution could stand the test better than the Indonesian
\nFederal Constitution of 1949 or the Temporary Constitution of
\n1950.<\/p>\n
By adopting the amendment system, we have actually arrived at
\nthe fourth experiment of our Constitution. The first experiment
\ntook place during the revolutionary period of 1945 to 1949; the
\nsecond during the New Order under the Pancasila propagation
\nsystem of 1966 to 1999; the third, the Guided Democracy period of
\n1959 to 1966 and the fourth experiment, the current "reform
\nperiod" with the amendment system from 1999. Hopefully, this will
\nbring us all to the 21st century with full self-confidence to
\nrevive the Indonesian nation.<\/p>\n
Charles Himawan is a member of the National Commission on
\nHuman Rights and professor of law at the University of Indonesia.<\/p>",
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