Obedience to the Constitution
Constitutionalism as a Process of Social Interpretation
Every 18 August is commemorated as Constitution Day. It is a day when the same question always recurs for observers of Indonesian constitutional affairs: How is obedience to the constitution today? And how has the constitution itself developed? In Indonesia, discourse on constitutional obedience often becomes trapped in a legalistic-positivist view that measures compliance solely by the conformity of state actions with the written text of the 1945 Constitution of the Republic of Indonesia (UUD NRI Tahun 1945). However, a review of modern constitutional theory shows that constitutionalism in practice is a very broad process of interpretation. This process is continually carried out within a community whose members share political power and jointly determine what the constitution permits or requires in specific, ever-evolving situations.
Constitutionalism cannot be reduced to mere dissection or exegesis of the written text by the courts alone. On the contrary, it always involves historical and cultural interpretation, in which the meaning of the constitutional text depends heavily on the context of its application in actual society. In its realisation, constitutional obedience demands recognition that the constitution has a backward-looking element to unearth the fundamental values of the nation’s inherited history, as well as a forward-looking element to consider the impact of applying those norms on the political system and public life as a whole.
The Founding Fathers’ Dialectic in Drafting the Constitution
The drafting of a constitution is essentially a process of political compromise or constitutional bargain. When the founding fathers gathered in the state-forming sessions (such as BPUPKI and PPKI), they were confronted with an extraordinarily wide diversity of visions regarding the form of the state, institutional relations, and the architecture of the separation of powers. In many traditions, not least in Indonesia, the constitution is viewed as a contract reflecting the distribution of power and bargaining interests among entities or representatives of society at the time of its formulation.
Awareness of this complexity led Indonesia’s founding fathers in 1945 to deliberately draft the constitutional text in a concise and flexible manner. They understood that a certain ambiguity was unavoidable, and that the meaning of the constitution would gradually be clarified over time through discourse and actual state adjudication precedents. The constitution was expected to become the principal framework guaranteeing freedom, in which the protection of rights rests not merely on words on paper (parchment barriers), but on institutional design that provides automatic defences within the state.
In the originalist tradition, the origins of a constitution should greatly influence or even determine how that constitution is interpreted today. Certain variants of originalism accord a privileged position to the original understanding of the actors who carried out the constitutional bargaining, and examine in detail what was meant by its normative formulations. Nevertheless, this originalist view does not require the constitution to be a dead document. On the contrary, it requires that the original will be translated progressively in ordering a complex state.
Session Records as a Bridge for Constitutional Interpretation
To trace that original intent, session records (risalah sidang) occupy a crucial position. The records are not merely administrative notes of conversations, but a historical, philosophical, and juridical bridge connecting the thinking of the founding fathers—and the drafters of the amendments to the 1945 Constitution during the transition era—with contemporary constitutional needs. Through the records, succeeding generations can trace the dialectic, the sharp debates, and the achievement of consensus that lay behind the birth of a constitutional norm.
In the context of a modern and increasingly mature rule-of-law state, the use of session records to unearth constitutional meaning goes hand in hand with a commitment to institutionalising an open parliament and mainstreaming stakeholder engagement. By opening the widest possible access and comprehensively disseminating the record documents, state institutions can stimulate substantive public discourse. This effort ensures that society is not merely force-fed memorised texts, but is invited to delve into the historical debates that shaped their rights and obligations as citizens.
For constitutional interpreters, the records guard against slipping into arbitrary or ahistorical interpretation. The records fulfil the need for the constitution’s backward-looking element, namely providing a justificatory foundation for contemporary interpretation by ensuring it remains anchored to the initial basis of agreement. Thus, when disputes arise over the meaning of institutional authority or human rights protection, the records become an intellectual referee that brings the voices of the constitution’s framers to the present-day judicial table.
Building a Constitutional Culture and the Principle of Checks and Balances
The existence of a constitutional government does not depend solely on how detailed its written document is, but rests heavily on the formation and maintenance of a constitutional culture. This constitutional culture is the fabric of interpretive norms, canons, and customary practices accepted and used (whether explicitly or implicitly) by most members of society to identify and maintain the hierarchical legal system. Without the establishment of this culture, the constitution and its declarations of freedom risk being degraded into mere silent sheets of text.