Fine-tuning the 1945 Constitution

Fine-tuning the 1945 Constitution

By Charles Himawan

JAKARTA (JP): The agreement reached recently by all factions
of the People's Consultative Assembly (MPR) to amend the 1945
Constitution reflects the members' statesmanship. The word
"amendment" itself, instead of "change," will automatically bring
us to the constitutional order of American political life. Many
lawyers and politicians have therefore suggested that we learn
from the example set by the Americans.

Three lessons can be learned from the U.S. Constitution that
was amended no less than 27 times in the last 200 years.

The first: the Americans preserve their sacred document in a
bulletproof case that is lowered at night into a reinforced vault
designed to withstand a nuclear explosion. It is not sufficient
for Indonesians to simply keep on shouting that the 1945
Constitution is sacred. We must show our concern through our
actions.

Second, the U.S. Constitution is familiarized by displaying it
at the National Archives Building in Washington D.C. with an
estimated one million visitors annually, including elementary
school children. Where is the original text of the 1945
Constitution displayed? How many visitors are there annually??
Without familiarizing the document to the public, it is difficult
to create deference to the 1945 Constitution.

Third, the U.S. Constitution has proved to be able to make
America a superpower and the wealthiest nation in the world
although not without turbulence and cost of life. All these
occurred due to the amendment system. Modeled after this, the
stature of the 1945 Constitution could remain intact while it
would be accommodative to the people's aspirations from one era
to another. Let us look at three simple examples.

The Voting Right:

It took the Americans 133 years from 1787 to 1920 to give
every citizen the right to vote without regard to race, color and
sex. In 1870, Amendment XV extended the voting right to blacks
and former slaves, but it took another 50 years for women to be
able to vote nationally through Amendment XIX of 1920. The
amendment system makes it possible to be responsive to modern
development.

The Presidential Office:

The American Constitution (Article 2 verse 1) determines that
the president "shall hold his office during the term of four
years, and together with the vice president, chosen for the same
term ..." It took another 64 years to limit the serving time to
two terms (Amendment XXII, 1951). Indonesia has once also
experimented with the issue.

The Vice Presidential Office:

In the event that the president cannot discharge his duties,
it was at first determined that the vice president "shall act" as
president (Amendment XII, 1804). This was later clarified.
Instead of "shall act," the vice president "shall become"
president (Amendment XXV, 1967).

In regard to Indonesia, the MPR could, for example, initiate
the following ideal amendments:

First, decide that the 1945 Constitution is the Constitution
of the Republic of Indonesia, henceforth to be known as the 1945
Constitution (UUD '45);

Second, decide that all MPR decisions are of the same level;

Third, decide as in Amendment I that "a president will serve
for a period of five years and may be reelected for another
term".

Fourth, decide as in Amendment II that "the vice president
will become president if the president fails to exercise his
duty".

Fifth, decide as in Amendment III that "the president and the
vice president could be removed from office by an impeachment
process";

Sixth, decide as in Amendment IV that "an indigenous
Indonesian is an Indonesian citizen who is born in Indonesia, and
whose father is also born in Indonesia".

The American constitutional history cited above proves that
the amendment system is an effective means for the sacred
document to accommodate the needs of an era, although it was at
first regarded as an experiment.

The great American Supreme Court Justice Oliver Wendell Holmes
(1841-1935) observed, albeit in a different context, that "it is
an experiment, as all life is an experiment". Experimenting with
the amendment system for the last 200 years has passed the test.

Indonesian constitutional history itself has shown that the
1945 Constitution could stand the test better than the Indonesian
Federal Constitution of 1949 or the Temporary Constitution of
1950.

By adopting the amendment system, we have actually arrived at
the fourth experiment of our Constitution. The first experiment
took place during the revolutionary period of 1945 to 1949; the
second during the New Order under the Pancasila propagation
system of 1966 to 1999; the third, the Guided Democracy period of
1959 to 1966 and the fourth experiment, the current "reform
period" with the amendment system from 1999. Hopefully, this will
bring us all to the 21st century with full self-confidence to
revive the Indonesian nation.

Charles Himawan is a member of the National Commission on
Human Rights and professor of law at the University of Indonesia.