The Constitution of Indonesia

A Contextual Analysis

Simon Butt, Tim Lindsey

• Publisher: Hart Publishing
• Year: 2012
• ISBN:
  9781847319883
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto pubblico

For decades, Indonesia's 1945 Constitution, the second shortest in the modern world, was used as an apologia by successive authoritarian regimes. A bare-bones text originally intended as a temporary measure, it did little beyond establish basic state organs, including a powerful presidency. It did not offer citizens real guarantees or protections. These weaknesses were ruthlessly exploited by the military-backed regime that President Soeharto headed from 1966 until his fall in 1998. The (first ever) amendments to the Constitution, which began the following year and were completed in 2002, changed all this. Enlarging and rethinking the Constitution, they ushered in a liberal democratic system based around human rights, an open society and separation of powers. These reforms also created a Constitutional Court that has provided Indonesia's first judicial forum for serious debate on the interpretation and application of the Constitution, as well as its first significant and easily-accessible body of detailed and reasoned judgments. Today, Indonesian constitutional law is rich, sophisticated and complex. This book surveys this remarkable constitutional transition, assessing the implementation of Indonesia's new constitutional model and identifying its weaknesses. After covering key institutions exercising executive, legislative and judicial powers, the book focuses on current constitutional debates, ranging from human rights to decentralisation, religious freedom and control of the economy.

1

Indonesia’s Constitutions

Introduction – Integralism in Indonesian Constitutional Thought – The Pancasila – The Pancasila and Integralism – The Persistence of Liberal Democratic Ideas – Dismantling Integralism – The Reinvention of the Pancasila – Conclusion

INTRODUCTION

INDONESIA’S UNDANG-UNDANG DASAR, or Constitution, of 1945 was an interim measure intended to allow the swift establishment of the government of a new independent Indonesian republic. It was hastily drafted in an atmosphere of chaos at the end of World War II. In this chapter we consider the consquences of this, beginning with a brief history of Indonesia’s three constitutions before identifying key debates influencing Indonesian constitutional thinking – all of which were raging as the tumultuous events of 1945 unfolded.

Occupying Japanese forces had facilitated the establishment of an Investigating Body for Preparatory Work for Indonesian Independence (Badan Penyelidik Usaha Persiapan Kemerdekaan Indonesia) in March 1945 and then the Preparatory Committee for Indonesian Independence (Panitia Persiapan Kemerdekaan Indonesia) on 7 August, the day after the bombing of Hiroshima.¹ The nationalist leaders who comprised these bodies, many of whom who had been jailed or exiled under Dutch colonial rule, foresaw military conflict with The Netherlands. As the Japanese surrendered to the victorious Allies on 15 August, Indonesians rightly expected their former rulers would soon return to reclaim the empire in the East Indies that they had ruled for centuries, and which had hugely enriched The Netherlands, making it a major mercantile power in the eighteenth and nineteenth centuries. The members of the Investigating Body and the Committee were therefore concerned to establish an independent state within the former colonial boundaries as quickly as possible.

Outside these meetings, many Indonesians were fighting each other over what to do next and what sort of state to establish. Most had only nationalist sentiment in common. Some were reviving old political organisations or establishing new ones; others had seized weapons from the Japanese and formed militias. The leaders at the Investigating Body meeting reflected these divisions, representing a range of conflicting ideological positions.

The short and skeletal Constitution of 1945 produced by the Investigating Body was more like notes for a constitution than a comprehensive basis for a new state. It was, in fact, described by its drafters as a provisional, temporary or ‘lightning’ constitution for the emergency conditions that then prevailed.² They intended it to be replaced by a more detailed and considered document as soon as conditions allowed. Despite this, their constitution has been in force in Indonesia for all but the decade from 1949 to 1959. In that period, two other constitutions were applied, products of the United Nations (UN) sponsored agreement that recognised Indonesian independence in 1949. Despite being one of the shortest constitutions in the world,³ and being initially intended as only a stop-gap measure, the 1945 Constitution was not amended until 1999.

For much of the four years that followed the declaration of Independence on 17 August 1945 Indonesians fought against the returning Dutch, as their leaders had expected. A hard-fought, if intermittent, guerrilla campaign was sustained by poorly-equipped militias of pemuda (youths) led by a small corps of soldiers once trained by the Japanese and the Dutch colonial armies. The pemuda were supported in their armed struggle by the astute diplomacy of politicians such as President Soekarno, his vice-president, Mohammad Hatta, and the Prime Minister, Sutan Syahrir. These leaders had learnt both their craft and the value of persistence in long years of protest, exile and imprisonment under the Dutch.

Eventually, popular opinion in the West – and, in particular, the United States – turned, and the Dutch colonial claim to the Indies became politically unacceptable. Post-war reconstruction aid to The Netherlands was soon at stake and repeated efforts were made to negotiate a settlement under the auspices of the UN, through the ‘good offices’ of America, Australia and Belgium, who acted as facilitators of talks, despite continued hostilities. Peace was not achieved until the Round Table Conference of 1949, when the Dutch finally accepted they had lost their colonies in the East Indies (with the exception of Papua, which they held until October 1962).⁴

The Dutch transfer of sovereignty took place on 27 December 1949. It was not made to the unitary Republic of Indonesia, however, but to a federation, the United States of Indonesia (Republik Indonesia Serikat, RIS or RUSI), of which the Republic was but one of 16 member states. Its constitution was federal, bicameral, parliamentary and liberal democratic. Regarded by Indonesian nationalists as a Dutch scheme to maintain influence through ‘puppet’ states, this federation collapsed within months. It was formally dissolved into, and replaced by, the current unitary Republic on 17 August 1950, the fifth anniversary of the proclamation of Independence. The new constitution of the re-united Republic was not, however, the bare-bones document proclaimed in 1945. Instead, a version of the constitution of the United States of Indonesia, but without the federal component or the RIS’ senate,⁵ was used. Drafted in two months by a Committee for Preparation for the Unitary State, this new, third constitution included a version of the Universal Declaration of Human Rights and was provisional in nature, envisaging the election of an assembly to draft a permanent constitution.

Both the Federal and the 1950 Constitutions were much more detailed than the 1945 Constitution but neither was a product of national consultation. Both lacked political legitimacy. The task of creating a more detailed and final constitution was therefore revived in 1955, and given to a Constituent Assembly, the Konstituante. This was elected pursuant to Article 134 of the 1950 Constitution in December 1955 but did not sit until November the following year. A two-thirds majority was required for Konstitutante decisions, and it became deadlocked over the type of state that the Constitution should embody, including, in particular, whether the state should be based on Islamic law (shari’ah) – a proposition that had been the subject of debate well before Independence, as we show in Chapter 8.

In 1958, the army responded to continuing political instability by proposing a return to the 1945 Constitution, which had been briefly applied during the revolution, albeit only in Republican-controlled areas. The army – which considered itself to have the right of political intervention by virtue of its role in the struggle against the Dutch – organised popular demonstrations calling for the reinstatement of the 1945 Constitution. Playing into their hands, political parties reflecting fragmented communal allegiances jostled for dominance amid growing political turmoil. This was aggravated by rebellions in Aceh, Sumatra and Sulawesi involving disgruntled politicians, Islamist groups and army factions, sparking the fears of national disintegration that are a common theme of Indonesian politics. When the Konstituante failed to endorse a return to the 1945 Constitution, President Soekarno launched an autogolpe, backed by the military. He reinstated the 1945 Constitution by unilateral decree on 5 July 1959.⁶

The ‘lightning constitution’ suited Soekarno’s needs. He had played a leading role in its creation in 1945, and its Spartan provisions lacked the checks and balances that might have thwarted the undemocratic ‘Guided Democracy’ dictatorship he now sought to create. Ruling directly, he presided over growing political rivalry between the army and the Indonesian Communist Party (Partai Komunis Indonesia, PKI), who competed for his favour.

Soekarno’s regime was marked by a capricious and personalised legal system he labelled hukum revolusi (revolutionary law), one of the many rhetorical and ideologically-loaded slogans he used to maintain political authority. Quoting Liebknecht, Soekarno stated that ‘You cannot build a revolution with lawyers’⁷ and political doctrine as enunciated by the ‘Bearer of the Mandate of the People’s Suffering’ (as he called himself) soon came to overrule statutes and judicial decisions. The resulting regime established patterns that were later described as ‘law without law’.⁸ It collapsed in 1966 when a Leftist coup attempt and a rapid counter-coup by Major General Soeharto led to a bloody nation-wide purge of PKI members and those identified as fellow travellers by the military and Muslim groups working with it. The violence ran wild and lasted many months. It is believed to have led to the deaths of over half a million Indonesians.⁹

The military-backed Rightist dictatorship led by Soeharto that emerged from this violence to replace Soekarno kept the 1945 Constitution in place for the same reasons that Soekarno had reinstated it: it was ‘top heavy’ in that it gave broad and strong powers to the President, and was hence easily amenable to authoritarian rule. The new administration expanded Soekarno’s Guided Democracy authoritarianism to create what was effectively an entrenched and coercive single-party system with power centralised in the presidency and enforced by the security and intelligence services. The regime inititially relied on emergency powers to administer what was essentially martial law but this eventually evolved into a sham democratic shell legitimised by reference to the 1945 Constitution, which left much of the detail of the operation of the organs of state to be determined by statutes (as we show in Chapters 2 and 3). For the three decades of the repressive New Order Soeharto established in 1966, the 1945 Constitution and the regime it enabled were presented as ‘sacred’, and their content immutable. Indeed, to propose revision or replacement was seen as an act of subversion, punishable with imprisonment or worse.¹⁰

President Soeharto’s corrupt and oppressive regime presided over a period of economic growth unrivalled since 1945 – consistently eight per cent overall in the 1990s, and 11 per cent in the industrial sector. Despite this, its 1998 collapse in the so-called ‘Asian Economic Crisis’ plunged Indonesia into financial and political disaster. By early 1998 Indonesia had slumped to seven per cent ‘negative growth’ (a fall of 13 per cent overall), unemployment had officially hit 12 per cent (in fact, it was certainly much higher), interest rates had climbed to over 75 per cent and the rupiah had plunged from 2,500 to the US$ to a catastrophic 17,000.¹¹ Around 80 per cent of banks and listed companies were insolvent, ‘the savings of the middle class were wiped out and labourers were thrown out of work by the millions’.¹² Student and middleclass protest gave way to rioting and looting in urban centres across the archipelago that often targeted the ethnic Chinese, stereotyped as wealthy and exclusivist. Rival army factions manipulated the violence, seeking political advantage, and financial crisis quickly became ‘kristal’ or krisis total. Unable to form a cabinet, and with embryonic coups apparently afoot amid scenes of chaos in major cities, Soeharto resigned that month.

His resignation proved to be a watershed in Indonesian history. The freeing-up of politics that followed not only ended military-backed authoritarian rule but also rapidly ushered in a much more open and democratic society. It became clear soon after this process began that the ‘minimalist’ 1945 Constitution was not appropriate for the new polity that was emerging. As a result, it was substantially rewritten from 1999 to 2002 in intensely contested annual debates between legislators in the Majelis Permusyawaratan Rakyat (MPR, People’s Consultative Assembly).

The revised constitution was much lengthier than the original brief document. It enshrined separation of powers and procedural democracy, as well as a set of human rights closely resembling those in the Universal Declaration of Human Rights. Ironically, in many respects it now resembles the provisional and liberal democratic constitution that had applied from 1950 to 1959, and which had been greatly reviled by both Soekarno and Soeharto. In any case, in substantially amended form, the 1945 Constitution has remained in force since 2002 and formed the framework for a largely successful transition to an open, liberal democratic system.

In the remainder of this chapter, we offer an account of the long-running battle between proponents of an authoritarian state and supporters of a liberal democratic model that has underpinned and informed the trajectory of Indonesian constitutional history just described. The implications of this for the constitutional status of the presidency, the legislature and the judiciary are explored in the next three chapters. The fifth chapter focuses on the most important source of constitutional interpretation in contemporary Indonesia – the Constitutional Court. The balance of the book then considers four other major areas of constitutional controversy in recent years, namely decentralisation, human rights, religion and the economy. We do this chiefly through an examination of the Constitutional Court decisions relevant to each theme, seeking to understand them both in their own terms and in their wider political contexts.

INTEGRALISM IN INDONESIAN CONSTITUTIONAL THOUGHT

The meetings of the Investigating Body for Preparatory Work for Indonesian Independence witnessed vigorous theoretical argument despite the sense of urgency and uncertainty that prevailed. The debate reflecte...

Table of contents

• Cover
• Title
• Copyright
• Preface
• Contents
• Terminology
• Acronyms and Abbreviations
• Glossary
• Table of Constitutional Court Cases
• Table of Legislation
• 1 Indonesia’s Constitutions
• 2 The Presidency
• 3 National Legislatures, Representative Assemblies and Elections
• 4 Judicial Power
• 5 The Constitutional Court and its Jurisdiction
• 6 Decentralisation
• 7 Human Rights
• 8 Religion, Pluralism and Pancasila 
• 9 Article 33 and Economic Democracy
• Bibliography
• Index