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(Re) enacting the Original Text of the 1945 Constitutions

 

Amendment of the 1945 Constitution has been carried out in conformity with the information agenda set in 1998. The basic ideas motivating the amendment were, according to the 2003 publication of the MPR’S general secretariat:

(1) the structure of the state rested too heavily on the MPR as the mandated holder of the people’s sovereignty;
(2) the power of the executive was too great;
(3) the prevailing of ‘elastic’ articles was resulting in multi-interpretation;
(4) the president’s authority to regulate important matters through the enactment of laws lone was too broad; and
(5) the formulation in the 1945 Constitution of matters concerning the spirit of governing the state did not contain basic regulations on democracy, supremacy of the law, empowering the people’s human rights, or regional autonomy.

Since independence was proclaimed on August 17, 1945, Indonesia has known three constitutions:

(1) the 1945 Basic Constitution (UUD 1945) from 1945 to 1949 and re-enacted in 1959 by presidential decree;
(2) the Basic Constitution of the United States of the Republic of Indonesia (UUD-RIS) from 1949-1950; and
(3) the 1950 Provisional Constitution (UUD 1950) from 1950 to 1959.

For some reason or another, there was also a kind of unwritten amendment made to the 1945 Constitution in the 1945-1949 period, which changed the system of government from presidential to parliamentary. Since the UUD-RIS was short-lived, less than nine months (December 1949 to August 1950), there is no need to discuss it here. The UUDS 1950 continued the prevailing system of liberal democracy introduced in the previous period, with political parties dominating the country’s political life. The result was never-ending squabbles between the parties and the constant changing of cabinets/governments to neglect of economic development.

President Soekarno, feeling that the county’s integrity was being endangered by the three years of heated debate in the Constitutional Council in formulating a new Constitution, issued in decree in July 1959 to abrogate the 1950 UUD and re-enact the 1945 Constitution. The New Order government of President Soeharto, President Soekarno’s successor in 1967, went further, adopting the policy of viewing the 1945 Constitution as sacrosanct: it could not be changed.

The 1950 Provisional Constitution produced unstable governments and a kind of chaotic liberal system of democracy. The re-enactment of the 1945 Constitution in 1959 resulted in two authoritarian regimes, namely President Soekarno’s Guided Democracy and President Soeharto’s repressive New Order government.

The first general elections of the reforming era were held in June 1999, producing the House of Representatives (DPR: Dewan Perwakilan Rakyat) composed of 500 elected members and a 700-member Consultative Assembly (MPR: Majelis Permusyawaratan Rakyat). The 700 consisted of 500 DPR members and 200 representatives from the regions (provinces) and social groupings. The MPR, as defined in the Constitution, was the highest state organ and had the right of formulate or amend the Constitution.

In its 1999 general session, the MPR took the decision to implement one of the reformation agendas: amendment of the 1945 Constitution. Accordingly, a working body was established to carry out the task. Three amendments were approved by MPR general sessions in 2000, 2001, and 2002, and a fourth in the 2003 general session, and they became law, but constitutional amendment, in principle, has drawn strong criticism from many quarters from the outset.

The general elections following the constitutional amendment were held in June 2004 and elected a 550-member DPR and 128-membner Regional Representatives Council (DPD: (Dewan Perwakilan Daerah) composed of four representatives for each of Indonesia’s then-32 provinces. This was according to the dictates of the amended Constitution.

The amended Constitution has come under criticism for its weaknesses. Prof. A. Ahsin Thohari (Kompas, September 7, 2005), lecturer at Indonesia Esa Unggul University in Jakarta, cites linguistic problems, a confusing mixture of linguistic styles used in the 1940s and the 2000s, an absence of relationship between ideas in its articles, a puzzling paragraphing system, and the introduction of a soft bicameral legislative system creating imbalances in the positions of the DPR and DPD as the principal elements of the new MPR. The DPR members are political-party candidates elected through a general election, while the 128 DPD members, representing the then-32 provinces, are elected directly by the people of the respective provinces.

Some maintain that the amendment has gone too far. If the original text of the Constitution gave too much power to the executive, the amended Constitution has given too much power to the legislative. For example, the appointment of ambassadors was the prerogative of the president but in the amended constitution require DPR approval. The appointment of the top military brass and the police chief, too, require DPR approval, as does enactment of laws. Once the DPR has approved a bill, it automatically becomes law within thirty days, with or without presidential approval.

History shows that the ‘elastic’ articles in the old text of the 1945 Constitution particularly regarded the presidential term of office. The old text stipulated that president and vice-president were elected by the MPR for a period of five years and could be re-elected. The historical experience is that from the Constitution’s re-enactment in 1959 up to rolling-in of reformation in 1998, the aforesaid ‘elastic’ articles produced two presidents with unlimited terms of office. President Soekarno let himself be named President for life by the MPR in 1966, while President Suharto interpreted the articles in such a way that he could be elected president for seven consecutive terms, in 1967, 1972, 1978, 1983, 1988, 1993, and 1998.
The amended Constitution stipulates that president and vice-president shall be elected as a single ticket and directly by the people in a general election especially held for that purpose. The Constitution limits the presidential terms of office to a maximum of two.

The amended Constitution also contains stipulations on the possibility of changing it, but many feel that replacements should not come from the original text of the 1945 Constitution. They point to the fact that when presenting the draft 1945 Constitution for approval on August 18, 1945, Soekarno, in his capacity of Chairman of the Indonesian Independence Preparatory Committee (PPKI: Panitia Persiapan Kemerdekaan Indonesia), said ‘Gentlemen [members of the Committee], you understand that this is only be said to be a revolutiegrondwet (revolutionary basic law). A more perfect and comprehensive Constitution can be made later. You, Gentlemen, should realize that today we must finish this Constitution’. (State Secretariat publication, 1998).

Anybody wanting to re-enact the original text of the 1945 Constitution will have to channel his or her aspirations through a constitutional mechanism or verfassung anderung (‘changing the constitution’) and mobilize the support of MPR members having a similar political agenda. Article 37 of the fourth constitutional amendment stipulates that any proposal for changing or amending the Constitution should be presented by at least one-third of the MPR membership to the MPR session in which at least two-thirds of its membership is present. Any decision to change the Constitution requires a vote of 50% plus one of the members present.

Prof. A. Ahsin Thohari said that legal change could take place if there was a strained situation between the law and social reality; normally, this could be settled by the institutions having legal authority. It could also take place if there was a gap between the law and social reality; legal changes would be needed in this case to adapt to the dynamism in the society. After all, the Constitution was not a holy book, the professor reminded us. When there are changes in the society and the Constitution cannot follow the dynamism of those changes, then constitutional change is a must.

 

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