Finally, Indonesia's own `First Amendment'

By Endy M. Bayuni

JAKARTA (JP): After surviving intact for more than 54 years, the 1945 Constitution underwent some modifications this year.

The changes to the Constitution, which to its staunch defenders, including the Indonesian Military (TNI), would have been unthinkable only two years ago, came peacefully after going through a considerable democratic and transparent process.

Indonesia's First Amendment, however, is not about freedom of speech, freedom of the press, freedom of assembly or freedom of practicing one's religion, the way the term "First Amendment" has come to be popularly known in the United States.

The First Amendment to the 1945 Constitution is a series of changes affecting the powers of the president. A product of the General Session of the People's Consultative Assembly (MPR) in October, it reflects the immediate concern of the Indonesian people after decades of tyrannical rule: curtailing the powers of the head of state which, for most of the past 54 years, have been widely abused by the holders.

Sukarno, Indonesia's first president, from 1945 to 1966, and Soeharto, president from 1966 to 1998, used, or abused, the 1945 Constitution so effectively to strengthen and sustain their grip on power. Each managed to rule for long periods of time, almost unchallenged. Those who tried to challenge them were branded "unconstitutional" and were therefore, to use Soeharto's famous and favorite expression, "clobbered". Even B.J. Habibie, the transitional president between May 1998 and last October, did not escape from accusations of abusing the powers vested on him by the Constitution. But unlike Soeharto, Habibie did not enjoy the support of the military. He failed, and lost the election in October to Abdurrahman Wahid. Thus Gus Dur, as the Muslim cleric is popularly called, is Indonesia's first president whose many constitutional powers have been clipped.

To some people, particularly those in the press, there is a nevertheless strong and valid reason for wanting to strengthen the constitutional guarantees of people's rights to free speech, free press and free association. The Constitution is ambivalent with regards to these rights: It recognizes them as basic rights on the one hand, but on the other it states that they have to be regulated. This, as the experience of the 32 years of the Soeharto regime has shown, opens the Constitution to many interpretations. Soeharto's interpretation was that these constitutional rights are subject to government controls "in the interest of the public". Even the shortlived Habibie regime colluded with the military to push the law on freedom of expression in 1998, which, again taking its cue from the Constitution, limited the people's right to express themselves in street protests. When one considers that both Sukarno and Soeharto were removed from power by the force of the "people's power" in 1966 and 1998 respectively, it is easy to understand why Habibie was so keen on enacting the law.

All is not lost however, since this MPR continues to work, unlike the previous ones which only convened once every five years to elect the president and vice president. The MPR has established a working committee, whose tasks include looking into other proposals to revise the 1945 Constitution.

The First Amendment, as the set of changes is officially called, was nevertheless a big step for a nation that only a few years ago regarded as treacherous or subversive those who wanted to modify the country's basic law, let alone replace it.

During the 32 years of Soeharto's tyrannical regime, many were killed or went to jail for even entertaining such thoughts. The Armed Forces, or ABRI as it was then known, even prided itself on assuming the role of the guardian of the Constitution. Once it had taken this posture, it justified any action it took, no matter how oppressive, in the name of defending the Constitution.

Publicly, the defenders of the 1945 Constitution, including ABRI, kept warning the public that the country's basic law and Pancasila ideology were under constant threat from the left -- meaning the communists -- and the right -- meaning Islamic militants. They continued to rally public opinion to come to the defense of the Constitution, which they insisted that in the original form was the only way that this diverse nation could be kept united.

They forged a "national consensus" to pledge to keep the 1945 Constitution intact, introducing laws that made it next to impossible to change it, such as by requiring that any change to the document must follow a referendum which only the president could call. Keeping the Constitution in its original form was also force-fed on all government and public leaders who took part in the Pancasila indoctrination programs. There was no room for disagreement, even in public discourses. Many of those who entertained the idea went to jail, or worse, were killed.

While proclaiming that they were doing this in reverence to the country's founding fathers, members of the Soeharto regime had in fact deviated from the spirit even the conceptors showed when they drew up the Constitution in 1945. Article 37, last in the document, clearly states that the basic law could be amended, with the support of at least two-thirds of the members of the MPR.

The real reason why the rulers resisted changes was not so much because of the threats from the left or right, which probably existed in some form at one time or another, but because the document in its original form served them well in sustaining and enhancing their power. This was true in the case of Soeharto, who tirelessly cited the Constitution as forming the basis of his power, the reason for his taking of power from Sukarno in 1966, and even the reason for his resignation on May 21, 1998. In between, he used the Constitution as a tool to "clobber" critics and detractors, and resorted to the Constitution every five years to ensure his reelection for 32 years.

The 1945 Constitution, in the original form, while vague, clearly invests a tremendous amount of power on the head of state. The first two presidents fell for the temptation and sought to stay in power. If Sukarno maneuvered himself to become "president for life", Soeharto almost became known as the "president till death", which was a real prospect if he had not been forced to resign in 1998.

Given the nation's traumatic experience of the abuse of power by its two first presidents, it stands to reason that one of the first things that was done once Soeharto was out of the scene was to try to change the Constitution. That required a real effort since many people in this country had been deeply indoctrinated to treat the 1945 Constitution as an almost sacred document. Many who took part in the independence struggle in the late 1940s also developed an emotional attachment to the basic law. Like the state ideology, Pancasila, and the national red-and-white flag, to many people the 1945 Constitution is sacred.

The biggest change brought about by the First Amendment is that a president can only serve for a maximum of two five-year terms. That has essentially preclude the emergence of another dictator, no matter how good or bad, reigning the country for what seemed like endless times. The other major change is that the president can no longer make laws alone. He now has to share this prerogative with the House of Representatives.

It has taken the nation more than a year of lively, open and at times passionate debate before a decision was made to amend the Constitution in October. A milestone in the nation's modern history, the amendment was overshadowed by the first truly democratic election of the country's president. While Abdurrahman's election was important, amending the Constitution will likely have a more far reaching impact on the nation's life.

Indonesia's version of the First Amendment may fall short in terms of guaranteeing people's freedom but it has at least opened the gates, and indeed broken them down, for even more revisions in the future. Where Indonesia is heading now is still an open question. As the nation reviews the Constitution, there are now even demands to replace the country's unitary system of government with a federal system, a move which many believe would require the nation to adopt a completely new basic law. In democracy, everything is debatable, and nothing, not even the Constitution or the system of government, is too sacred to talk about. And as Indonesia's experience with the First Amendment showed, democracy ensures that changes, if and when they do happen, occur peacefully.