Constitution of Indonesia

The Japanese invaded the Dutch East Indies in 1942, defeated the Dutch colonial regime, and occupied it for the duration of World War II. The territory then fell under the jurisdiction of the Japanese Southern Expeditionary Army Group (Nanpo Gun), based in Saigon, Vietnam. The Japanese divided the territory into three military government regions, based on the largest islands: "Sumatra" was under the Japanese 25th Army, "Java" under the Japanese 16th Army and "East Indonesia" (the eastern islands), including part of "Borneo" (Sarawak and Sabah were under the Japanese 38th Army) was under the Imperial Japanese Navy. As the Japanese military position became increasingly untenable, especially after their defeat at the Battle of Leyte Gulf in October 1944, more and more native Indonesians were appointed to official positions in the occupation administration.

On 1 March 1945, the 16th Army established the Investigating Committee for Preparatory Work for Independence (Indonesian: Badan Penyelidik Usaha Persiapan Kemerdekaan (BPUPK)), for Java. The 25th Army later established a BPUPK for Sumatra.[2] No such organisation existed for the remainder of Indonesia.

The BPUPK in Java, when established, consisted of 62 members, but there were 68 in the second session. It was chaired by Dr Radjiman Wedyodiningrat (1879–1951). The future president Sukarno and vice-president Mohammad Hatta were among its members. It met in the building that had been used by the Dutch colonial quasi-parliament, the Volksraad ("People's Council") in central Jakarta. It held two sessions, 29 May – 1 June and 10–17 July 1945. The first session discussed general matters, including the philosophy of the state for future independent Indonesia, Pancasila. the philosophy was formulated by nine members of the BPUPK: Sukarno, Hatta, Yamin, Maramis, Soebardjo, Wahid Hasjim, Muzakkir, Agus Salim and Abikoesno.[2] The outcome was something of a compromise, and included an obligation for Muslims to follow Sharia (Islamic law), the so-called Piagam Jakarta (Jakarta Charter) which later changed to the current version of Pancasila. The second session produced a provisional constitution made up of 37 articles, 4 transitory provision and 2 additional provision. The nation would be a unitary state and a republic.

A 1946 print edition of the constitution

On 26 July 1945, the Allies called for the unconditional surrender of Japan in the Potsdam Declaration. The Japanese authorities, realising they would probably lose the war, began to make firm plans for Indonesian independence, more to spite the Dutch than anything else.[3] On 6 August, an atomic bomb was dropped on Hiroshima. On 7 August, the Nanpo Gun headquarters announced that an Indonesian leader could enact a body called the Preparatory Committee for Indonesian Independence (Indonesian: Panitia Persiapan Kemerdekaan Indonesia (PPKI)). The dropping of a second atomic bomb on Nagasaki, and the Soviet invasion of Manchuria on 9 August prompted the Japanese to surrender unconditionally on 15 August 1945. Sukarno and Hatta declared independence on 17 August 1945, and the PPKI met the following day.[2][4]

In the meeting chaired by Sukarno, the 27 members, including Hatta, Supomo, Wachid Hasjim, Sam Ratulangi and Subardjo, began to discuss the proposed constitution article by article. The Committee made some fundamental changes, including the removal of 7 words from the text of Jakarta Charter which stated the obligation for Muslims to follow Sharia. The new charter then became the preambule of the constitution, and the clause stating that the president must be a Muslim was removed. The historical compromise was made possible in part by the influence of Mohamad Hatta and Tengku Mohamad Hasan. The Committee then officially adopted the Constitution.[2]

The 1945 Constitution (usually referred to by the Indonesian acronym "UUD'45") remained in force until it was replaced by the Federal Constitution on 27 December 1949. This was in turn replaced by the Provisional Constitution on 17 August 1950. In 1955 elections were held for the People's Representative Council (DPR) as well as for a Constitutional Assembly to draw up a definitive constitution. However, this became bogged down in disputes between nationalists and Islamists, primarily over the role of Islam in Indonesia. Sukarno became increasingly disillusioned by this stagnation and with the support of the military, who saw a much greater constitutional role for themselves, began to push for a return to the 1945 Constitution. This was put to the vote on 30 May 1958 and 2 June 1959, but the motion failed to gain the required two-thirds majority. Finally, on 5 July 1959 President Sukarno issued a decree dissolving the assembly and returning to the 1945 Constitution.[5]

The Indonesian political system before and after the constitutional amendments

Suharto, who officially became president in 1968, refused to countenance any changes to the Constitution despite the fact that even Sukarno had viewed it as a provisional document.[6] In 1983, the People's Consultative Assembly (MPR) passed a decree stipulating the need for a nationwide referendum to be held before any amendments were made to the Constitution. This led to a 1985 law requiring such a referendum to have a 90% turnout and for any changes to be approved by a 90% vote. Then in 1997, the activist Sri Bintang Pamungkas and two colleagues were arrested and jailed for publishing a proposed modified version of the 1945 Constitution.[7]

With the fall of Suharto and the New Order regime in 1998, the 1983 decree and 1985 law were rescinded and the way was clear to amend the Constitution to make it more democratic. This was done in four stages at sessions of the MPR in 1999, 2000, 2001 and 2002. As a result, the original Constitution has grown from 37 articles to 73, of which only 11% remain unchanged from the original constitution.[8]

The most important of the changes were:[9][10]

• Limiting presidents to two terms of office
• Establishing a Regional Representative Council (DPD), which together with the DPR makes up an entirely elected MPR.
• Purifying and empowering presidential system of government, instead of a semi presidential one.
• Stipulating democratic, direct elections for the president, instead of the president being elected by the MPR
• Reorganizing the mechanism of horizontal relation among state organs, instead of giving the highest constitutional position to the People's Assembly.
• Abolishing the Supreme Advisory Council[11]
• Mandating direct, general, free, secret, honest, and fair elections for the House of Representatives and regional legislatures
• Establishing a Constitutional Court for guarding and defending the constitutional system as set forth in the constitution.
• Establishing a Judicial Commission
• The addition of ten entirely new articles concerning human rights.

Among the above changes, the establishment of Constitutional Court is regarded as a successful innovation in Indonesia constitutional system. The court was established in 2003 by 9 justices head by Professor Jimly Asshiddiqie,a prominent scholar from the University of Indonesia. There are five jurisdictions of the court, i.e. (i) constitutional review of law, (ii) disputes of constitutional jurisdiction between state institutions, (iii) disputes on electoral results, (iv) dissolution of political parties, and (v) impeachment of the president/vice-president. The other icon of success in Indonesian reform is the establishment of the Corruption Eradication Commission which independently fights against corruption and grafts. Corruption in Indonesia is regarded an extraordinary crime.

The preamble to the 1945 Constitution of Indonesia contains the Pancasila state philosophy.

THE PREAMBLE OF THE 1945 CONSTITUTION

Whereas independence is a genuine right of all nations and any form of alien occupation should thus be erased from the earth as not in conformity with humanity and justice,

Whereas the struggle of the Indonesian independence movement has reached the blissful point of leading the Indonesian people safely and well before the monumental gate of an independent Indonesian State which shall be free, united, sovereign, just and prosperous,

By the grace of God Almighty and urged by the lofty aspiration to exist as a free nation, Now therefore, the people of Indonesia declare herewith their independence,

Pursuant to which, in order to form a Government of the State of Indonesia that shall protect the whole people of Indonesia and the entire homeland of Indonesia, and in order to advance general prosperity, to develop the nation's intellectual life, and to contribute to the implementation of a world order based on freedom, lasting peace and social justice, Indonesia's National Independence shall be laid down in a Constitution of the State of Indonesia, which is to be established as the State of the Republic of Indonesia with sovereignty of the people and based on the belief in the One and Only God, on just and civilized humanity, on the unity of Indonesia and on democratic rule that is guided by the strength of wisdom resulting from deliberation / representation, so as to realize social justice for all the people of Indonesia.

States that Indonesia is a unitary republic based on law with sovereignty in the hands of the people and exercised through laws.

States that the People's Consultative Assembly is made up of the members of the People's Representative Council and the Regional Representatives Council, all of the members of both bodies being directly elected. The People's Consultative Assembly changes and passes laws, appoints the president, and can only dismiss the president or vice-president during their terms of office according to law.

Outlines the powers of the president. States the requirements for the president and vice-president. Limits the president and vice-president to two terms of office and states that they be elected in a general election. Specifies the impeachment procedure. Includes the wording of the presidential and vice-presidential oath and promise of office.

Four short articles giving the cabinet a constitutional basis. The president appoints ministers.

Explains how Indonesia is divided into provinces, regencies and cities, each with its own administration chosen by general election. The leaders of these administrations are "chosen democratically". Autonomy is applied as widely as possible. The state recognises the special nature of certain regions.

Its members are elected by general election. It has the right to pass laws, and has legislative, budgeting and oversight functions. It has the right to request government statements and to put forward opinions.

An equal number of members is chosen from each province via a general election. The Council can suggest bills related to regional issues to the People's Representative Council. It also advises the House on matters concerning taxes, education and religion.

General elections to elect the members of the People's Representative Council, the Regional Representatives Council, the president and vice-president and the regional legislatures are free, secret, honest and fair and are held every five years. Candidates for the People's Representative Council and regional legislatures represent political parties: those for the Regional Representatives Council are individuals.

States that the president puts forward the annual state budget for consideration by the People's Representative Council.

Explains that this exists to oversee the management of state funds. (Cf. Supreme Audit Institution)

Affirms the independence of the judiciary. Explains the role and position of the Supreme Court as well as the role of the judicial commission. Also states the role of the Constitutional Court.

States that the nation is an archipelago whose borders and rights are laid down by law.

Defines citizens and residents and states that all citizens are equal before the law. Details the human rights guaranteed to all, including:

• the right of children to grow up free of violence and discrimination
• the right of all to legal certainty
• the right to religious freedom
• the right to choose education, work and citizenship as well as the right to choose where to live
• the right of assembly, association and expression of opinion
• the right to be free from torture

It also states that the rights not to be tortured, to have freedom of thought and conscience, of religion, to not be enslaved, to be recognised as an individual before the law and to not be charged under retroactive legislation cannot be revoked under any circumstances. Furthermore, every person has the right to freedom from discrimination on any grounds whatsoever.

Finally, every person is obliged to respect the rights of others.

The nation is based on belief in God, but the state guarantees religious freedom for all.

States that all citizens have an obligation and right to participate in the defence of the nation. Outlines the structure and roles of the armed forces and the police.

States that every citizen has the right to an education. Also obliges the government to allocate 20 percent of the state budget to education.

States that major means of production are to be controlled by the state. Also states that the state takes care of the poor.

Specifies the flag, official language, coat of arms, and national anthem of Indonesia.

Lays down the procedures for proposing changes and amending the Constitution. Two-thirds of the members of the People's Consultative Assembly must be present: any proposed amendment requires a simple majority of the entire People's Consultative Assembly membership. The form of the unitary state cannot be changed.

States that laws and bodies continue to exist until new ones are specified in this constitution. Calls for the establishment of a Constitutional court before 17 August 2003.

Tasks the People's Consultative Assembly with re-examining decrees passed by it and its predecessors for their validity to be determined in the 2003 general session.