Indonesia: Democracy and the Promise of Good Governance

2. Indonesia’s Constitutional Change Reviewed

21 2 Indonesia’s Constitutional Change Reviewed Andrew Ellis THE PROCESS OF CONSTITUTIONAL CHANGE The constitution of any country defines both the institutions by which the country governs itself and the relationship between its citizens and its institutional framework. A constitution is a fundamentally political document, establishing the rights and duties of citizens and state institutions , and reflecting also the way in which society wishes to be governed. It may therefore be expected to be the result of wide-ranging political debate. As with any process of political debate, there will be some with interests to promote or protect. It is legitimate and indeed desirable that constitutional debate should centre on long-term vision. However, it is also inevitable that particular short-term, sectoral or even venal interests will affect the course of that debate, and that a constitution will be the product of its time and environment. The story of the constitutional amendment process undertaken by Indonesiabetween1999and2002,andtheimplementationoftheamended constitution, exemplifies this. Although some may have believed that there was some kind of ideal constitution which could be devised or discovered by independent technical experts, in practice that was never going to be the case. Institutional history, narrow political interests and vision on the part of some of the key players were all significant in the progress that was made and the failures and setbacks that took place. It is now over two years since the 2004 general and presidential elections— the first to take place within the framework of the amended constitution. Sufficient time has therefore elapsed to attempt an assessment of the new institutions. 22   Andrew Ellis THE 1945 CONSTITUTION OF INDONESIA In its original form, the 1945 Constitution of Indonesia contained only 37 articles. It was written as a temporary text. Its pattern of state institutions was substituted in practice within three months of its promulgation, and no other nation has since copied it. Yet the 1945 Constitution has enduring emotional significance for most Indonesians as a symbol of the struggle for independence and as a founding pillar of the unitary state of the Republic of Indonesia. In the transition after 1998, not only the substance but also the symbol of ‘the 1945 Constitution’ was at stake. The 1945 Constitution was based on the doctrine of an integralistic state, defined by drafting committee chair Soepomo as ‘the principles of unity between leaders and people and unity in the entire nation’ (Yamin 1959: 111–13). The sovereignty of the people was to be exercised ‘in full through the People’s Consultative Assembly’ (MPR), which was to be established as the highest institution of state and ‘the manifestation of all the people of Indonesia’, and was to ‘determine both the Constitution and the Broad Guidelines of State Policy’ (GBHN). The MPR was to consist of directly elected legislators, regional representatives and representatives of functional groups, the latter being ‘cooperatives, labour unions and other collective organisations‘. It was to meet once every five years ‘to decide the policy of the state to be pursued in the future’ and to give its mandate to the president. The five high institutions of state—the President, the People’s Representative Assembly (DPR), the Supreme Advisory Council, the State Audit Board and the Supreme Court—would submit reports to the MPR at the end of each five-year electoral term. This structure rejected both the principle of separation between the individual and the state and the principle of separation of powers between the institutions of the state, and thus also rejected any concept of ‘checks and balances’. A ‘Presidential System’? The president was to be ‘the chief executive of the state’ and ‘the true leader of the state’, and would ‘hold the power of government in accordance with the Constitution’; but presidential power was ‘not unlimited’.  Article 1(2) of the 1945 Constitution.  Section 6(III) of the elucidation to the 1945 Constitution.  Elucidation to article 2(1) of the 1945 Constitution  Elucidation to article 3 of the 1945 Constitution.  Title of section 6(VII) of the elucidation to the 1945 Constitution. Indonesia’s Constitutional Change Reviewed   23 The president would be ‘subordinate and accountable’ to the MPR, and ‘the highest administrator of state below the MPR’. The conventional definition of a presidential system requires three specific characteristics: a one-person rather than collegiate executive; an executive directly elected by the voters; and a fixed-term chief executive not subject to legislative...