An outdated Constitution

An outdated Constitution

With pressure on the People's Consultative Assembly (MPR)
mounting to have its formulation of a draft amendment to the 1945
Constitution completed by August -- which is when the Assembly is
slated to meet for its annual session -- voices for and against
an amendment are once again being widely heard in various
sections of the Indonesian public. To put it briefly, the long-
standing controversy over the document that is known as the 1945
Constitution revolves around the following:

On one side of the divide are those who argue that, for all
its shortcomings, the 1945 Constitution has served the Indonesian
nation well throughout the 57 years of its existence. It is a
"safe" constitution in the sense that it pretty well accommodates
nearly all the aspirations and interests of the legion of groups
that exist in society, although, of course, some things,
sometimes fundamental, are lost in the compromise process. One
major aspect of this process is the elimination from the final
draft of what is known as the Jakarta Charter, which obliges
Muslims to obey the dictates of syariah (Islamic law), as
contained in the Koran.

On the other side are those who believe that the document is
totally inadequate and incapable of serving as a foundation on
which a modern democratic society can be built. To wit, two
successive regimes, the first being Sukarno's "guided democracy"
and the second, Soeharto's New Order", used it to establish an
almost dictatorial grip on the nation. It is no coincidence that
both easily hopped from reelection to reelection until disaster
forced both of them out of power.

The document was decreed on August 18, 1945, just one day
after Sukarno and Mohammad Hatta proclaimed Indonesia independent
from foreign rule. Indonesia, it should be remembered, was under
the occupation of Japan's imperial forces, which had lost the
war, and the return of the old Dutch colonial masters was
imminent. Given the urgency involved, the authors of the 1945
Constitution naturally had to work under immense pressure. The
end product was the 1945 Constitution, a basic document that
seeks, as far as was possible under the circumstances, to adapt
some of the most fundamental of Indonesia's traditional values
such as that of musyawarah untuk mufakat (deliberation towards
consensus) to modern usage.

One of the document's many shortcomings is the absence of any
mention of human or civil rights, let alone the protection of
them. A host of other shortcomings have since become apparent.
Among other things, it makes it possible for those in power to
extend their hold on power indefinitely, using the 1945
Constitution and the state principle of Pancasila (the Five
Principles) that it contains as a pretext. The principle of
balancing the executive and legislative branches of government
has not worked out as was originally intended.

What may be surprising, though, is that successive generations
of politicians have either failed or refused to amend the 1945
Constitution, despite the fact that the document explicitly
states that it is of a temporary character and should, in time,
be replaced by a permanent one. Ironically, though, it is the
same document that makes this difficult to do. Even while stating
that it is temporary, the 1945 Constitution places the supreme
authority of law and policy making, including drafting and
passing a constitution, in the hands of the MPR.

Ideally, of course, the drafting of a new constitution should
be done by an independent commission, as was proposed by
President Megawati Soekarnoputri in her state-of-the-nation
address last November. Since then, however, and not surprisingly,
the idea has met with strong opposition from factions in this
supreme state institution, where factional political interests
reign supreme. Under such circumstances, any new constitution or
constitutional amendments must be adopted by the MPR to become
law.

Be that as it may, it is of the greatest urgency that the
controversies over the constitutional amendments be cleared out
of the way quickly. Other laws of no lesser urgency, such as the
one on political parties and one on the 2004 general elections,
are waiting for the muddle to be cleared before they can be
debated and passed. Failing to amend the 1945 Constitution would
be to undermine the process of reform to which this nation is
committed.