Finally, Indonesia's own `First Amendment'

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.