Indonesia needs new constituion

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."