Constitutional change: Learning from history

Constitutional change: Learning from history

Edward Schneier, Professor of political science at the City
College of New York teaching at Jakarta's Institute of
Government Studies, Jakarta

Although there is growing agreement that substantial changes
in the Indonesian Constitution are needed, there is no consensus
as to who should act first and how. Predictably, the president
has proposed a commission, which presumably she would appoint;
the leadership of the People's Consultative Assembly has
designated its own legislative committee; and a coalition of
reform groups has proposed a commission of experts comprised
largely of scholars and independent experts from these same non
government organizations.

None of these paths are likely to lead to meaningful change.
Constitution-making in countries like Great Britain, which has no
written constitution, the Scandinavian democracies and
Switzerland, in which written constitutions evolved out of
longstanding practices, has essentially been a process of
solidifying existing unions.

For newer or less homogeneous societies, the problem of
legitimacy is both more complicated and more important. How can
constitutional democracy in such societies acquire sufficient
legitimacy to constrain and channel the methods of resolving
future conflict and protecting rights?

Most governments are born in cataclysm: To the extent that
they want to base authority in consent rather than force, the
greater the need to cultivate the myth and imprint of popular
support.

The first step toward achieving such support is to recognize
that moments of constitutional magnitude transcend normal
politics. Normal politics are for tinkering at the margins of
change; constitutional moments are those that call for heightened
consciousness, broader participation, and a willingness to look
beyond the factional and party rivalries of here and now.

A new government arising from the ashes of a discredited old
regime is doubly damned. It can build a foundation of legitimacy
neither on the ruins of the old order's discredited legal system,
nor on a claim that their current position of power is anything
more than transitional.

Constitutional moments frequently occur in the wake of
revolution, the end of colonial rule, or with the fall of empire.
If this is a constitutional moment for Indonesia, it comes -- as
for the United States in 1789 -- not in the dawn following
freedom, but in later day reflections of those who see the
original constitution's flaws.

And the problem of gaining legitimacy is, for those who would
change Indonesia today, much as it was for those who scrapped the
decade-old Articles of Confederation in favor of what became the
Constitution of the United States.

The American founding fathers did three things that
Indonesians might note. The first was to construct a
constitutional convention that transcended the established
process.

The flaw in the existing system that most needed change was
the requirement that all acts of the Continental Congress --
including changes in the constitution -- be by unanimous vote of
all 13 states. The Constitutional Convention that convened in
Philadelphia in 1787 simply by-passed this procedure.

Despite its dubious legal origins, however, the Convention
included many of the new nation's most learned experts in law and
history, as well as seven present or former governors of various
states, 28 members or former members of Congress; and, as its
presiding officer, the commander-in-chief of the Armies of the
Revolution, George Washington.

They were a landed aristocracy well aware of its own
prerogatives, but they were also representatives of all the new
nation's diverse regional interests, and uncommonly able as a
group to transcend factional disputes and command public respect.

The second defining characteristic of the American
Constitutional Convention was its determination to negotiate
whatever compromises were necessary to produce a consensus
document. Some of these compromises were neither moral nor
enduring. Failure to confront the issue of slavery led
ultimately to civil war, and the initial absence of a Bill of
Rights was an oversight that even the founders felt a need
quickly to remedy.

But the work of the convention in crafting a nation out of 13
diverse states, of drafting a document that (Civil War
notwithstanding) has worked for more than two centuries, was
really quite remarkable.

The third and perhaps most important characteristic of the
American process was its self-imposition of downstream
constraints. By subjecting its own work to a subsequent
ratification process, the convention was constrained both by the
need to achieve a consensus among the delegates and later to sell
the product to a skeptical electorate.

Sold as a package, the new Constitution had to balance the
interests of small states and large, South and North, without
offending a diversity of ethnic and religious minorities.

The risk in imposing downstream constraints is that the
pressure to compromise may produce a constitutional system so
overloaded with checks on power that it is incapable of decisive
action. But a government without legitimacy is equally or more
profoundly paralyzed, and the American system, while possibly
overloaded with checks and balances has shown itself capable of
working effectively when it has to.

Constitutions export poorly, but the processes of politics are
similar throughout the world. The American experience offers
important guidelines for Indonesia's would-be reformers first
through its emphasis on the importance of transcending usual
politics to make constitution-building a discrete, consecrated
event.

Second, the constitution-making body should be charged not
just with amending existing articles, but of creating a 21st
century Indonesian polity. It should consult widely in this
processes, considering both the experiences of other nations and
the dual perspectives of both partisan activists and more neutral
scholars.

And finally, the product of their deliberations should be put
to the people. The risks that ratification poses -- especially
if the vote reveals and exaggerates regional divisions -- are not
insignificant; but they are almost certainly outweighed by their
ability to confer legitimacy and inspire confidence in the
incipient democratic regime.