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.