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.