Indonesia needs new constituion

Lambert J. Giebels, Historian, Breda, The Netherlands

If one wishes to solve present constitutional problems, as was the aim of a panel discussion organized by The Jakarta Post at the end of last year, one has to look into the past where those problems are rooted.

The designer of the 1945 Constitution, professor Soepomo, based his draft on a fascistic concept of the state. This is evident in the overriding powers of the president, which harks back to the Fuehrer principle, and in the "organic" role of the functional groups, reminding us of Italy under Mussolini -- and which was later revived with the Golkar party.

The fathers of the Constitution did not reject Soepomo's fascistic concept. They, however, superimposed on it constitutional institutions that were alien to Soepomo's proposal. These are: The Trias Politica, the separation of the executive, legislative and judicial powers; a hastily worded article 28 on civil rights (providing the citizen the freedom of assembly and of speech, "et cetera"), and Sukarno's Pancasila philosophy, which became part of the Constitution's preamble.

The authors of the hastily drafted Constitution, proclaimed on Aug. 18, 1945, were well aware of the imperfections of their draft.

The last sentence of the Constitution was: "Within six months after the election of the People's Congress, the Congress shall assemble to enact the Constitution." The wording indicates that the first legislative body was intended to become a constituent assembly. The struggle for independence that followed the proclamation made the election of a People's Congress impossible.

Finally, the Netherlands on Dec. 12, 1949, transferred the sovereignty of the Netherlands-Indies to Indonesia, and the 1945 Constitution was replaced by a new, provisional, constitution that established the United States of Indonesia.

This constitution was radically revised when president Sukarno proclaimed the unitary state on Aug. 17, 1950. A constitutional drafting body was set up to enact the definitive constitution.

After more than three years of deliberations, the negotiations were still bogged down in debates over whether syariah (Islamic law) should be included in the constitution. On June 3, 1959, Gen. Nasution broke up the constitutional body's meeting in Bandung. On July 5, Sukarno dissolved the body for having failed in its work, and restored the 1945 Constitution.

President Sukarno was quite clear about his interpretation of this Constitution. He rejected the western parliamentary system because he considered a majority of "50 percent plus one" a dictatorship, alien to the Indonesian principle of consensus. He also rejected the western concept of Trias Politica, because a separation of powers was in his view contrary to the Indonesian ideal of working together, or gotong royong.

Therefore, Sukarno established his "Guided Democracy" -- where the rule of law was replaced by the law of the ruler. The sort of "enlightened despotism" that Bung Karno had in mind soon became an authoritarian regime that he himself could hardly control -- the nation builder lacked the necessary statecraft.

The charismatic and eloquent sultan became a struggling tightrope walker between the two centers of power -- the army and the Indonesian Communist Party (the now banned PKI), which were in a constant struggle for control of the state.

As expected, one incident was sufficient to unsettle the unstable equilibrium between president, army and PKI.

That incident was the clumsy attempted coup by an occasional alliance of some representatives of the PKI and some frustrated officers of the army and air force on Oct. 1, 1965. The plan was to kidnap the army leadership and bring them to president Sukarno, who would force them to accept a Cabinet proposed by the plotters. But in a panic, six generals were murdered. It was the end of the reign of president Sukarno, who could not convince his opponents that he knew nothing about the planned kidnapping.

The "New Order" replacing his "Old Order" regime did not differ much despite their names. What president Soeharto, in fact, did was to perfect Sukarno's Guided Democracy. The economic success that followed had its price. Politics served the sole purpose of economic growth.

Like president Sukarno, Soeharto based his political system on the 1945 Constitution. The executive kept control over the legislature and the judiciary remained its instrument. Sukarno's state philosophy of Pancasila continued to exist. It became a means to silence dissent, to discourage advocates of an Islamic state, to show the world a democratic face and to persuade rich countries to provide development aid.

In the end, this authoritarian regime also fell victim to "the law of Lord Acton", that power tends to corrupt, and absolute power corrupts absolutely.

Given the above history, it seems unlikely that the contradictions of the 1945 Constitution will be eliminated, its imperfections corrected and its shortcomings removed by merely amending it. Rather, a radical revision of the Constitution seems inevitable.

Moreover, there is the promise of the founding fathers that a constitutional drafting body would formulate the definitive constitution, for which they left a draft. To prevent a stalemate in the drafting of a new constitution, an independent committee of experts must first clarify the principal outstanding constitutional problems.

This process could take years. The People's Consultative Assembly (MPR) should consider assigning the Supreme Court the functions of a Constitutional Court to examine the flow of constitutional amendments.

A legal basis for this may be found in article 11(3) of the 1978 MPR Decree III, which states: "The Supreme Court may render legal advice, whether requested or otherwise, to the other institutions of state."