Should the Indonesian Constitution be amended?

Pan Mohamad Faiz *

(Ph.D. Candidate in Constitutional Law at University of Queensland, Australia)

Since it was created for the first time in 1945, the Indonesian Constitution of 1945 (hereinafter the Constitution) has been amended once through the four stages from 1999 to 2002. This constitutional amendment was occurred following the collapse of the New Order regime under Soeharto’s leadership in 1998 (Crouch, 2010). Demands for constitutional reforms by various parties at the time were based on fundamental reasons, such as the Constitution did not have a strong foundation for a democratic life and unclear system of checks and balances (Indrayana, 2008).

Moreover, the Constitution before amendment was also considered causes multiple interpretations that were often used by the government to build a power of authoritarianism (Mahfud, 2000). Presently, ten years after the constitutional reforms, the majority of people feel that the social, political and economic problems are not getting better. At this point, there is a strong movement to amend the Constitution again, because the Constitution is considered to be one of the major factors for causing various problems to the nation.

In this context, there are three groups who want to amend the current Constitution. Firstly, the group who urges the Constitution to be returned as the original form. Secondly, the group who wants the Constitution to be amended again as soon as possible. Thirdly, the group who sees that there is no need for amending the Constitution right away. This essay will present an analysis that the best preference to amend the Constitution is the third option where it has to wait until there is a comprehensive grand design about the draft of constitutional amendment.

The first group who urges the Constitution to be returned to the original format comes from several retired military leaders. According to them, the Constitution which was amended from 1999 to 2002 had violated the philosophical values and national ideology based on Pancasila (Hartono, 2011). Nevertheless, this view does not have a strong basis, because the first President Soekarno had obviously stated that the 1945 Constitution was made in an emergency situation and it was made as fast as they could.

Therefore, he said that in the future it was necessary to amend the Constitution for the sake of nation in accordance with the development of society (Kusuma, 2004). Meanwhile, the second group who wants to amend the Constitution as soon as possible carries the agenda for improving the state administration system. Based on the research study by the Regional Representative Council (2011), there are several issues that can be included into the constitutional amendment, such as strengthening the representative institutions, optimizing the role of the Constitutional Court and adding more chapters on human rights protection.

Nonetheless, the seriousness of the Council for proposing the draft of constitutional amendment has drawn criticism from the House of Representatives members. They alleged that the draft is primarily intended to strengthen the power of the Council itself. Furthermore, amending the Constitution will not provide a guarantee to solve the problems that exist today (Kesowo, 2011). However, amending the Constitution is not a taboo thing to do. The Constitution could be amended anytime when the people who hold the ultimate sovereignty want to do it. These are the key points brought by the third group which mostly comes from academics and practitioners.

Nonetheless, to avoid suspicion among the political elite, particularly from the members of House of Representatives, the Constitutional Commission or an independent body should be established permanently (Asshiddiqie, 2009). The Commission should have a function to examine regularly the advisability for amending the Constitution. It should be composed from experts in their fields as well as representative of community leaders. Therefore, it can reduce the political tension and sectoral egos during its drafting. Moreover, through the Constitutional Commission, draft of constitutional amendment should be disseminated to get an input not only from political elites or government officials but also from all level of societies (Saifudin, 2009).

In conclusion, the intention to amend the Constitution should be supported, but it does not need to be done in the near future. In line with the view of the third group, further studies and researches have to be conducted in making a comprehensive grand design of constitutional amendment draft and it should involve more public participations. Thus, the future constitutional amendment will meet the principle of participatory democracy. While continuing to refine the draft of constitutional amendment, the most important thing to do is that the government and other state officials have to perform their obligations which have been clearly written in the current Constitution in order to fulfil the interests of its people.

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 REFERENCES:

Asshiddiqie, J. (2009). The Constitutional Law of Indonesia. Singapore: Sweet & Maxwell.

Crouch, H. (2010). Political Reform in Indonesia after Soeharto. Singapore: Institute of Southeast Asian Studies (ISEAS).

Dewan Perwakilan Daerah. (2011). Naskah Akademis Usulan Amandemen Komprehensif (Academic Manuscript of Comprehensive Amendment Proposal). Jakarta, Indonesia: Author.

Hartono, D. (2011, November). Hukum yang Melindungi Segenap Bangsa Indonesia (Law that Protect all the Indonesian People). Paper presented at the Dialogue Forum of National Development Planning, Jakarta.

Indrayana, D. (2008). Indonesian Constitutional Reform 1992-2002: An Evaluation of Constitution-Making in Transition. Jakarta: Kompas Book Publishing.

Kesowo, B. (2011, March 19). Amandemen UUD 1945 Lagi? (Amending the 1945 Constitution again?). Kompas. Retrieved from http://entertainment.kompas.com/read/2011/03/ 19/03021246/Amandemen.UUD.1945.Lagi.

Kusuma, A.B. (2004). Lahirnya Undang-Undang Dasar 1945 (The Birth of the 1945 Constitution). Depok: Badan Penerbit FHUI.

Mahfud, M. (2007). Konstitusi dan Hukum dalam Kontroversi Isu (Constitution and Law in the Controversial Issues). Jakarta: Rajagrafindo Persada.

Saifudin. (2009). Mencari Model Ideal Partisipasi Masyarakat dalam Pembentukan Peraturan Perundang-undangan di Indonesia (Seeking the Ideal Model of Public Participation for Law Making in Indonesia). Yogyakarta: FH UII Press.