An outdated Constitution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.