LAPORAN AKHIR PENELITIAN
HIBAH KOMPETENSI
JUDUL PENELITIAN
MODEL REKONSTRUKSI TRADISI BERNEGARA DALAM
KONSTITUSI PASCAAMANDEMEN UUD 1945
Tim Peneliti
Ketua: Dr. Aidul Fitriciada Azhari, SH
(NIDN: 0001016801)
Anggota: Jaka Susila, SH, M.Si, MH
(NIDN: 0619065401)
dibiayai oleh:
Direktorat Penelitian dan Pengabdian kepada Masyarakat Direktorat Jenderal Pendidikan Tinggi, Kementrian Pendidikan dan Kebudayaan RI, sesuai dengan
Surat Perjanjian Pelaksanaan Penugasan Penelitian Hibah Kompetensi No: 047/SP2H/LP/DIT.LITABMAS/V/2013, Tanggal 13 Mei 2013
UNIVERSITAS MUHAMMADIYAH SURAKARTA DESEMBER 2013
SUMMARY
The research focuses to investigate the ideas of reconstruction of constitutional
tradition among the founding father of Indonesia and its development in practices before and
after the amendment of the Indonesian Constitution. Based on documentary or normative
research, the research finds that there are two pattern of reconstruction of tradition in
Indonesia, which is used as model for reconstruction of tradition in the constitution, namely
the absolute particular and the relative particular. Historically, before the amendment of the
Indonesian Constitution, the reconstruction of tradition was practiced based on absolute
particular model, while after the constitutional amendment tends to reject to reconstruct the
tradition at the national structure but recognize the tradition at local structure. Generally, it
can be concluded that the amendment of the Indonesian Constitution does not have an
obvious pattern of reconstruction of tradition. It contradicts with the original meaning of the
founders that obviously believed tradition as a basic to create a national constitutional system.
Comparatively, Malaysia has been practicing reconstruction of tradition based on
particular relative model by apply the perpatih tradition, which is originated from
Minangkabau tradition. The perpatih tradition is a democratic tradition, which applied in
Negeri Sembilan, Malaysia. Based on the perpatih tradition, the Yang di-Pertuan Besar as the
monarch of Negeri Sembilan should be elected by the four of Undangs. The founders of
Malaysia have applied the perpatih tradition in the Malaysian elected monarch system to
choose the Yang di-Pertuan Agong as the monarch of Malaysia for a five-year term. This
PREFACE
The progress report of the second-year research focused on study of comparisons of
the reconstruction of tradition between Indonesia and Malaysia. Generally, the research
founded that the reconstruction of tradition in Indonesia before the amendment of the
Constitution of 1945 applied the particular-relative, however after the amendment tends to
reject the tradition to be reconstructed in the national structure, but recognizes the tradition in
the local structure. Comparatively, Malaysia has been reconstructing the tradition both in
national and local structure. Malaysia reconstructs the tradition of perpatih, which actually
originated from Minangkabau, a cultural region in Indonesia.
The output of the second-year research are two papers to be presented at the nasional
conference in Surabaya and the international seminars in Bandung. Those papers will be
submitted to the national journal (Jurnal Hukum UII-Yogyakarta) and the international
journal (Asia Pacific Law Review-LexisNexis, Hongkong).
Based on the second-year research, the research will be followed by the third-year
research to evaluate the reconstruction of tradition in the amendment of the 1945 Constitution
and then create a model of reconstruction of tradition in Indonesia. The model can be used as
standard or gudelines to make or interpret the 1945 Constitution according to tradition of
Indonesia.
Surakarta, 2 December 2013
CONTENTS
SUMMARY, iii
PREFACE, iv
CONTENTS, v
LIST OF APPENDICES, vi
CHAPTER I INTRODUCTION, 1
CHAPTER II LITERATURE REVIEW, 5
CHAPTER III PURPOSE AND OUTPUT OF RESEARCH, 13
CHAPTER IV METHODOLOGY, 14
CHAPTER V RESULT OF RESEARCH, 15
CHAPTER VI THE NEXT STAGE PLAN, 41
CHAPTER VII CONCLUSION, 42
LIST OF APPENDICES
Appendix 1. Rekonstruksi Tradisi Bernegara dalam Konstitusi Pascamandemen UUD 1945, Paper presented on the National Conference of Legal Philosophy, Surabaya 27-28 August 2013.
Appendix 2. Reconstruction of Constitutional Traditions in the Indonesian and Malaysian Constitution: A Comparison, Paper presented on the 2013 Padjadjaran International Legal Conference, Bandung, 22-24 October 2013.
Appendix 3. Reconstruction of Constitutional Traditions in the Indonesian and Malaysian Constitution: A Comparison, Draft of Article for Asian Jurnal of Comparative Law
Appendix 4. Recontsruction of Statecraft Tradition in The Post Amandment of The 1945
Constitution: The Tensions Between Tradition and Modernity in Positive Legal System, Draft of Article for Jurnal Ilmu Hukum UII
Appendix 4. Certificate of The 2013 Padjadjaran International Legal Conference,
Bandung 22-24 October 2013
Appendix 5. Certificate of the National Conference of Legal Philosophy, Surabaya
CHAPTER I INTRODUCTION
There is no monarchy that doesn't collide with values of constitution and democracy
(Suara Yogya, 26/11/2010). President Susilo Bambang Yudhoyono (SBY) addressed the
statement to the Bill of the Specialty of Yogyakarta. Relatively, President proposed that the
Governor of Yogyakarta shouldn't be occupied by the Sultan or the King of Yogyakarta any
longer because it is considered as incompatible with democracy. In the sense of SBY,
democracy must be reflected in the election of Governor—directly or indirectly, not by
appointment of the Sultan Yogyakarta which is obtained by descent.
Inevitably, the statement raises a strong reaction among Yogyakarta people. They
rejected the claim of President because it opposed to the history of the founding of the
Special Region of Yogyakarta (DIY), of which the monarchy system is accepted within the
Republic of Indonesia. For the people of Yogyakarta, the monarchy is a privilege of
Yogyakarta, which if it is removed, it would abolish the specialty of Yogyakarta. In addition,
distinction between monarchy and democracy is not appropriate because, institutionally, the
Governor of Yogyakarta executes the government in the region together with the Regional
People’s House of Representatives (DPRD) whose members are elected in general election.
That means that the government of DIY is practiced based on the principles of democracy
and representative government.
The people of Yogyakarta expressed their response in a political statement that
Governor of Yogyakarta come to existence by way of the Sultan's appointment as it has been
practiced before. The stance of Yogyakarta people is considered based on the historical
aspect of the specialty of Yogyakarta given by Government as an admiration from
Government with respect to the greatest role of Sri Sultan Hamengkubuwono IX in his
support to the Republic of Indonesia during the difficult situation in early period of
independence. For the people of Yogyakarta, the privilege of Yogyakarta is not only a respect
for the individual role of the Sultan. However, it is a historical agreement or “ijab-kabul”
(political contract) between government of the Republic of Indonesia and the King of
Yogyakarta to give the privilege for Yogyakarta to apply a monarchy system within the
Republic of Indonesia. In addition, normatively, the stance of people of Yogyakarta is
considered based on the provision of Article 18 (1) of the 1945 Constitution that obliges the
Meanwhile, Government through the Bill of the Specialty of Yogyakarta remains to
keep his position to charge the governorship in Yogyakarta by election as it is practiced in
another provinces. Government creates two kinds of Governorship, Prime Governor which is
permanently held by the Sultan and Governor as Head of Regional Government that is
elected through election. This position is based on the provision of Article 18 (4) of the 1945
Constitution stating that Governor as Head of Regional Government should be
democratically elected. Based on that provision, Government argues that all of governors
should be elected by democratic process, even Governor in special region like Yogyakarta.
Consequently, the specialty of Yogyakarta is not determined by the position of Governor
attributed to monarchy system, but in the other aspect especially aspect of culture which is
originated from Yogyakarta Kingdom.
The principle contrast between the people and DPRD vis-à-vis Government in respect
with the position of Governor of Yogyakarta can be traced on the paradigm of democracy
within the amendment of the 1945 Constitution. View of government about democracy
system refers to electoral-democracy that is democracy with emphasis on general election
process. Conceptually, electoral democracy is the standard of liberal democracy giving
priority to individual freedom. In the other sense, liberal democracy means as negation to
state intervention within individual area. Consequently, the power of state has to be restricted
in order not to create abuse of power. Practically, the mechanism of the power restriction will
be executed through general election that periodically restricts and circulates the government.
The Concept of electoral democracy in 1945 Constitution amendment also can also be
traced in relation with a phenomenon of global democratization. That phenomenon, which is
said by Samuel P. Huntington as “the third wave democratization”, is a process that
emphasizes on general election as the standard of democracy in a state (Huntington,
1995:4-5). This also happens in the amendment of the 1945 Constitution. One of fundamental change
in the amendment of the 1945 Constitution is regulation of general election in a specific
article with more detail provision. The article 22E of the Third Amendment mentions that
general election will be accomplished to elect the members of DPR directly, the members of
DPD, the President and Vice President and the members of DPRD.
The provision of direct general election is very important to indicate electoral
democracy in Indonesia. In practice, the provision of general election is extended to election
of head of regional government that are governors in provinces, regents (bupati) in regencies,
and mayors (walikota) in municipalities. Whereas, article 18 (4) of the Second Amendment
democratically, without provision it should be conducted by direct general election.
Consequently, there is incoherence in several regions where the head of regional government
is elected indirectly that have legal basic on the article 18 (4) the Second Amendment of 1945
Constitution but viewed contrarily to the electoral democracy principle.
That incoherence points out that the amendment of the 1945 Constitution with
emphasis on electoral democracy has contradiction with Indonesia constitutional tradition.
Just from notion point of view, it can be concluded that electoral democracy in the
amendment of 1945 Constitution is the adoption and transplantation from Western
democracy model, which imposed together with the moment of democratization after the
collapse of communism in East Europe. Therefore, it is not surprising if the amendment of
1945 Constitution has no sensitivity to the Indonesian constitutional tradition discourse as it
is practiced in Yogyakarta.
It is different from the discourses and practices before the amendment of the 1945
Constitution having strong orientation to the constitutional tradition in the society. The
discourses of constitutional tradition have been developed among the Indonesian founding
fathers and became the basic conception for the formation of the Indonesian constitution
system within the 1945 Constitution. The concept of deliberation (permusyawaratan) as a
basic concept in the fourth principle of Pancasila, for example, refers to tradition of
deliberation that practiced along centuries within the Indonesian society. Also concept of
people sovereignty is a concept that designed by Mohammad Hatta as a form of
reconstruction of democratic tradition that practiced by Indonesian people in the rural area or
villages (Hatta, 1977:41).
In practice, the constitutional tradition has become a reference especially when the
periods of the Guided Democracy and the New Order. The conception of Guided Democracy,
which created by Soekarno, explicitly referred to a kind of genuine democracy that cultivated
within Indonesia society (Soekarno, 1959:20). The conception of Pancasila democracy,
which is created by the New Order regime, referred to concept of familial state (or
negara-kekeluargaan) that viewed as a kind of collectivity tradition in Indonesian society (Azhari,
2010:59).
In general, the constitutional discourses and practices in Indonesia is an effort to build
a reconstruction of constitutional tradition of Indonesian society into the modern Indonesian
constitution system. The purpose of reconstruction of traditional constitution is to adapt the
cultivated and developed based on the history and culture values of Indonesia. Thereby, the
constitutional system will be able to push progress of nation without disorientation values and
national disintegration.
Unfortunately during reformation era, the people accused the constitutional reference
to tradition because it was viewed as one of factor for development of authoritarianism
practice during the Guided Democracy and New Order periods. For that reason, the
amendment of the 1945 Constitution did not make the tradition as the main reference for the
formation of the Indonesia constitutional system after reformation. Although there is
recognition to constitutional tradition, but it is viewed as local traditions as a kind of local
wisdom that is not fully used as the main reference for the establishment of a constitutional
system in the national level. Generally, in national level, constitutional system refers to
Western democratic system that commonly studied in the academic sphere.
The purpose of this research is to study further about the reconstruction of
constitutional tradition within the 1945 Constitution after amendment. Refers to explanation
above, the reconstruction of tradition remains an important issue in the Indonesian
constitutional law because there are incoherencies between the original notions in the 1945
Constitution and the alteration notions in the amendment of 1999-2002. In addition, there are
incoherencies between norms within the amendment of the 1945 Constitution and
constitutional tradition that practiced in the society. In the context of national interest, those
incoherencies have made conflicts among society. Accordingly, a further study is required to
solve those incoherencies concerning the reconstruction of constitutional tradition in the 1945
Constitution after amendment.
A model of reconstruction of tradition is expected to be the basis for consolidation of
democratic processes that have not been completed until now. Democracy has consolidated if
there is an agreement on the rules of game or “the only game in town” (Huntington,
1995:273). The assumption is that the consolidation of democracy was not achieved because
there is incoherence between the post-amendment constitutional norms that oriented to the
CHAPTER II LITERATURE REVIEW
A. TRADITION, POSITIVE LAW, AND NATION STATE
Term of ‘constitutional tradition’ in this research refers to tradition of managing the
state affairs within a legal meaning. In the legal meaning, constitutional tradition points
toward aspects of tradition related to constitutional and administrative law. Particularly, this
research is emphasized on the study about aspects of constitutional law of tradition. Related
to those aspects, the research focused on structure of the state as a main scope of
constitutional law studies. In constitutional law studies, structure of the state means structure
of the main bodies (i.e. legislative, executive, and judicial bodies) and relations between
those bodies. This research is focused on, especially, structure of legislative and executive
and relations between the two of bodies to determine the system of government.
Regarding the ‘tradition’ itself, there are various meanings. In general sense,
‘tradition’ is distinguished from ‘modern’. Tradition means everything comes from the past,
while modern refers to everything found in the present and future. Traditional society is
distinguished from modern, post-industrial, or even post-modern. Tradition is often thought
in relation with myth and ancient heritage, while modern points to rationality and
science-technology. And because rationality, science and technology was created by Western, then
modern is identical with Western world. Accordingly, to be modern means to be Western. It
means modernization is equal with westernization.
Karl Popper points out that there are problems with the way of thinking. Popper said
that even rationality in Western is a tradition, which is inherited from the Greek civilization.
Rationality is a logic system, which can be traced to Greek philosophers such as Pythagoras,
the first mathematician who created several mathematic formulas or Aristotle who created
system of logic. Rationality of Greek philosophy has created a rationality or scientific
tradition for the Western society (Popper, 2002:169-170).
Accordingly, there are non-rational or other-rational traditions outside the Western
world. The existence of those traditions relate to the tradition of social function. Popper
suggests that tradition must be understood in the light of human need for order or regularity.
He argues further that, “Similarly, the creation of traditions, like so much of our legislation,
world in which we live” (Popper, 2002:175). Thus, tradition may give people a certainty to
plan rationally their acts in the future.
The social function of tradition point out that tradition cannot be distinguished from
rationality. Rationality itself is a part of tradition of Western society and some other
traditions, while some other traditions have non-rational values. However, every tradition
has a logic system to maintain the social order and certainty, whether or not they are rational
or non-rational traditions.
In legal context, as Popper argues, traditions have parallel function with legislation or
law to give people some order. There is no contradiction between tradition and legislation
related to their function. For this reason, some traditions have been developed into customs
that are obeyed by a community as legal norms—namely customary law. Moreover, several
customary legal norms have been adopted by legislation to be part of positive law in a
modern state. It means that the positive law in modern state, which naturally has foundation
on rationality, can be created based on traditions because they have similar function to create
and maintain the social order.
Although tradition and law have a similar function given to social order, but the
power of their binding are different. As Austin argues, before the custom or tradition is
adopted by courts or legislation, it is merely a rule of positive morality. However, tradition or
custom is transmuted into positive law, when it is adopted as such by the courts of justice,
and when the judicial decisions fashioned upon it are enforced by the power of the state.”
(Austin, 1869:104) This can be considered as the positivization of custom or tradition. In
this regard, Kelsen said that “custom has to be, like legislation, a constitutional institution”
(Kelsen, 1973:126). Kelsen says about this in relation to the hierarchy of norms, where the
constitution is the highest of norms in a legal order. Kelsen argues further that it is possible
“only if the constitution … institutes custom, just as it institutes legislation, as a law-creating
procedure” (Kelsen, 1973:126). Therefore, tradition or custom can be transmuted into a
positive law when it is adopted by court and legislation or–in the highest hierarchy of norms
–determined by the constitution.
In relation to this research, the adoption of custom into the positive law, particularly
into the constitution, can be viewed as a kind of reconstruction of the tradition. This is a
common phenomenon as the consequence of the growth of nation-state around the world.
Historically, there are four kinds of nation states: (1) the classic nation states in Northern and
Western Europe, which were shaped based on Westphalia Agreement of 1648; (2) ‘belated’
disseminated by propaganda. Those nation states developed in Central and Eastern Europe;
(3) decolonization nation states that emerged from the process of decolonization, primarily in
Africa and Asia; (4) the independent nation-states in Eastern and Southern Europe that
emerged after the collapse of the Soviet Empire (Habermas, 1999:105-6).
In legal aspect, the nation state has two consequences, e. g. positive law and identity,
which are related to one another. First, the nation-state cannot be separated from the positive
law. As Kelsen argues, positive law appears empirically in the form of national legal order,
whereas the state is personification of the national legal order (Kelsen, 1973: 181). Positive
law is always distinguished from divine law or natural law—the law as expression of the
“will of nature” or of “pure reason” (Kelsen, 1973:114). Positive law, as Austin says, is “the
law set by political superiors to political inferior”. The term of political superiors refers to
“persons exercising supreme and subordinate government, independent nations, or
independent political societies” (Austin, 1869:88-9). This means that positive law is created
based on merely sovereign in the state, without refers to divine law or natural law. This refers
to nation state as a kind of state founded based on the idea of nation.
Second, a nation-state expresses an identity of a nation. There is a common
characteristic of those nation states: the states were founded based on the idea of nation. The
idea of nation refers to “the unique spirit of the people—the first truly modern form of
collective identity—provides the cultural basis for the constitutional state” (Habermas,
1999:113). Obviously, the idea of nation refers to traditions that inherited by a community
from the past. Traditions contain the unique spirit of the people and provide the cultural basis
to create a collective identity as a nation and give a political legitimacy to establishment of
the state. Accordingly, the independence movements exploit traditions to create a national
consciousness to move decolonization process toward nation independence.
There is a connection between positive law and identity in the nation state: the
positive law expresses identity of a nation. Accordingly, there are various national legal
systems such as French, English, China, Indian and Malay legal system, which represent each
national identity. Those national legal systems are the positive laws in each state that created
based on cultural basis provided their own traditions. This shows the nation-state gives a
frame for positive law to represent identity of nation—by adopting the tradition into the law.
This also gives a cultural basis for the constitutional state when the constitution as the highest
norm of positive law determines traditions or customs as a legal norm in the state.
also influence the establishment of the national legal systems. Therefore, most countries in
the world have national legal system with ‘foreign influence’. Some countries acquire
influence from foreign legal system intentionally, such as Japan got influence from Germany
legal system based on government policy. Some other countries receive foreign influences
by coercion due to colonialism, occupation, or the other ways. The foreign legal system also
influences several countries due to needs in economy or business relations. In globalization
era, it is difficult to find a national legal system with ‘pure national identity’ because the
growth of information and communication technology that creates every state relatively
opened and transparent. Meanwhile, modernization, which is often identified as
westernization, causes some countries establish their national legal system following the
modern western legal system.
Nevertheless, national identity remains a fundamental reference to establish the
national legal system. Although it receives foreign influences, most countries maintain
national identity as a basis for their national legal system. Even, there is a tendency to
reinforce ethno-nationality in several countries—a contradiction in globalization, which
causes the spreading of anti-foreign in some legal system. That phenomenon pointing out
national identity is still very important for most countries to build their national legal order.
Although there is an ideological reason, sociologically the need for stability and certainty
become a reason to maintain national identity as a basis for institute national legal system.
B. TWO MODELS RECONSTRUCTION OF TRADITION
In this regard, the reconstruction of tradition has been used as a way to maintain
national identity in the national legal system. The reconstruction of tradition commonly
accompanies the establishment of the nation states, primarily in Asia and Africa. For those
states, reconstruction of the tradition enables adjustment of the tradition into the structure of
nation state that inherited from western colonialism. Most countries in Asia and Africa,
which experienced decolonization process after World War II, have inherited the colonial
structures, included institutions and legal system. Those colonial legacies originated from
western tradition with rationalistic character. This creates problems for new nation states in
Asia and Africa, which have many different traditions. On one side, they have to find the
nation state according to modern order. On the other hand, they have to keep their traditions
to maintain their national identity. There is a strained situation caused by ideology of
nationalism that make them have to carry out decolonization with the establishment of the
of the tradition has been used to adjust traditions into the structure of nation state. In legal
aspect, the reconstruction is carried out by the adoption of traditions into positive law,
particularly into the constitution as the highest norm in the national legal order.
In line with this research, the reconstruction of tradition focuses on the Indonesian
constitutional traditions, which the 1945 Constitution reconstruct. Actually, many researchers
have conducted studies on the reconstruction of constitutional tradition in Indonesia.
However, those studies were conducted in relation to the development of the authoritarian
system in the period of the Guided Democracy (Old Order) and the New Order. Among other
thing, research of Benedict R O’G Anderson (1990) which became a major reference in the
study of the reconstruction of tradition in Indonesia. Later, study of Dietmar Rothermund
(1997) examines the reconstruction of tradition in several countries, including in Indonesia.
In addition, Azhari’s study (2005) concluded that the Indonesian founding fathers had
deliberated the reconstruction of tradition as a basis of democracy in Indonesia. For them,
Indonesian democracy should be invented based on historical experiences and cultural values.
However, until now there have been no in-depth studies on the reconstruction of
constitutional tradition in the post-amendment of the 1945 Constitution. The amendment of
1945 Constitution refers more to the current theories and ideas that related to democratization
process after the end of the Cold War and the collapse of communism in Eastern Europe,
which viewed as a victory of liberal democracy. Therefore, the reconstruction of tradition
becomes a new thing because it is outside the mainstream of constitutional studies in
Indonesia.
In that context, this study uses the reconstruction of tradition as the main theory to
explain development of the reconstruction of tradition in the 1945 Constitution and to build a
model of reconstruction of tradition in constitutional system in Indonesia. The reconstruction
of tradition is a theory from Dietmar Rothermund who states that nationalism becomes a
prime over for Asian society to create “a reconstruction of tradition”, included the
reconstruction of “genuine democracy”. The reconstruction of tradition is a reflection of need
to create and maintain a nation state. The reconstruction of tradition in democratic living
finds its relevance in a nation state because it has implication in defining territorial with a
relatively homogeny population and a representative government (Rothermund, 1997:14).
In general, there are two models of the reconstruction of tradition in Indonesian
constitutional law. First, it emphasizes more on relative aspect of the proper genuine tradition
tradition so that viewed essentially different from the values of modern state (Azhari,
2010:53-65).
The first model views tradition that evolved within Indonesian society as the basic to
build Indonesian society toward modern society (Noer, 1986:72). Although it contains
criticism against western democracy as system with individual values, that view does not
opposed between constitutional traditions in Indonesia and modern constitutional state. The
main perspective is expanding and adaptation of constitutional tradition with the modern time
to create Indonesia as the modern constitutional state (Hatta, 1975:43).
The second model views tradition of Indonesian society as very different from the
modern state. This perspective commonly refers to social harmony – called in bahasa
Indonesia as selaras and serasi – in communalism of rural society. This perspective views
democracy in the sense of unity and consensus—namely ‘genuine democracy’, which is
distinguished from western democracy with freedom and competition values (Hatta,
1975:51-2; Nasroen, 1971:52). The proponent of ‘the genuine democracy’ requires tradition
applied as originally in the nation-state without change or modification.
C. ISLAMIC LAW AND ADAT LAW
The Indonesian society indentifies a legal tradition that evolved among various
ethnics in Indonesia called adat law. The Indonesian Constitution recognizes and respects
adat law along with its traditional customary rights as long as this remain in existence and is
in accordance with the societal development and the principles of the Unitary State of the
Republic of Indonesia (Art. 18: 2). Some special provinces such as Papua, West Papua, and
Yogyakarta, apply adat law as the local or regional distinction. In addition, thousand villages
in Indonesia apply adat law as a kind of recognizing and respecting to particularities and
diversities of traditional communities in Indonesia.
Adat law exists in Indonesian national legal system in common with Islamic law and
modern western law. Those legal systems represent three historical layers in Indonesia. Adat
law is the oldest layer, which represents indigenous communities in Indonesian archipelago.
Islamic law represents Muslim belief as the majority in Indonesia, which has grown since
Islamic kingdoms were ruled in most Indonesian archipelago in 14th century. Meanwhile,
modern-western law is the legacy of Dutch colonialism, particularly since 1840 when
Netherlands Kingdom applied the first Netherlands Indie Constitution. Practically, most
legal system because they act as part of indigenous, Moslem and modern community at the
same time.
In correlation with Islam, there is a controversy about the relation between Islamic
and adat law. Previously, Dutch legal scholars assumed that adat law represented Islamic law
because Moslem was the most population in Indonesia. This paradigm was popularly called
receptio in complexu theory, which argued that Islamic law was practiced effectively in local
communities and it modified some adat law, particularly in family law, so that it was suitable
with Islamic law (Lukito, 1998:44). On the contrary to the previous theory, the receptie
argues that Indonesian living law is not Islamic law. Although several religions live in
Indonesia, including Islam, adat law is still preserved and practiced among various local
communities without any significant influences, particularly the influences from Islamic law
(Lukito, 1998:43).
Approximately in 1900, when Indonesian nationalist movement arose, the legal policy
of Dutch colonial administration in adat law (or adatrechtpolitiek) tended to support adat law
to Islamic law. It means receptie theory had more influence to Dutch legal policy. Daniel
Lev explained that the legal policy has not only legal purpose, but also political intention
(Lev, 1985:64). The political intention of adatrechtpolitiek was illustrated in its struggle with
Islamic law. It was articulated in Vollenhoven statement, who said, “destroying the adat law
cannot smooth out the way to codification of our law, but only to create social disruption and
Islam” (Lev, 1985:66).
The controversy between Islamic and adat law actually expressed the struggle
concerning tradition among Indonesian founding fathers, which was articulated at the
constitutional making process at BPUPKI. They, who supported the receptie theory, tended to
separate the Indonesian tradition from Islamic one and refused Islamic tradition as a part of
national identity. They viewed Islam as a foreign tradition so that Islamic tradition cannot be
used as the reference to reconstruct the tradition. Soepomo—the main drafter in
constitutional making—stated that Indonesia, based on its location, had different
characteristics with other countries such as Iraq, Iran, Egypt or Saudi Arabia that had Islamic
characteristics or Corpus Islamicum. He insisted that Indonesia was not part of Corpus
Islamicum, so that Islamic traditions cannot be used as the reference to reconstruct national
identity (Kusuma, 2004:129).
On the contrary, they who viewed Islam and adat law tended to integrate Islamic
tradition particularly had to refer to Islamic traditions. Ki Bagoes Hadikusumo—the
prominent Islamic leader—showed this stance when he stated that Indonesia had to be
established based on Islamic religion due to the fact that ninety percent of population in
Indonesia were Moslems (Kusuma, 2004:147).
In relation with the reconstruction of tradition, they who supported receptie theory
tended to keep particularly absolute model. The stressing to originality or genuine aspect of
tradition made their stance more resistant against foreign influences. Consequently, they had
a tendency to reconstruct the traditions as originally practiced by adat or indigenous
communities.
On the contrary, they who supported receptie in complex theory had a tendency to
hold reconstruction of tradition in particularly relative model. Because they viewed that Islam
and adat law were integrated, their stance was more open-minded against some strange
influences. Consequently, they tended to maintain traditions appropriately with modern
structure. For instance, Mohammad Hatta—a prominent nationalist leader—argued that
traditions had to be maintained as a basic to create a modern nation through adaptation and
expanded with the modern time. Personally, Hatta came from Minangkabau, an important
ethnic in Indonesia, which had strongly Islamic traditions. In Minangkabau , Islam and
tradition (or adat) cannot be separated due to tradition had to be evolved based on Islamic law
BIBLIOGRAPHY
A. Primary Source
The Constitution of the Republic of Indonesia of 1945 and Its Amendments
The Constitution of Malaysia, 1957/1963
The Laws of the Constitution of Negeri Sembilan, 1959.
Decree of MPR No. II/MPR/1993 on the Broad Outlines of State Policy.
Law No. 32 of 2004 on the Local Government
Law No. 11 of 2006 on the Aceh Governance
Federation of Malaya Constitutional Commission. Report of the Commission for the
Federation of Malaya Constitutional. London: Colonial No. 330, HMSO, 1957.
Badan Pekerja MPR. Perubahan Pertama dan Perubahan Kedua UUD 1945: Bahan
Penjelasan BP-MPR dalam Rangka Memasyarakatkan Hasil Sidang Umum MPR 1999 dan Sidang Tahunan MPR 1999. Jakarta: Sekretariat MPR, 2000.
B. Secondary Source
Austin, John. The Province of Jurisprudence. Edited by H.L.A. Hart .London: George Weidenfeld & Nicholson, 1954.
Awang, Muhammad Kamil. The Sultan and the Constitution. Kuala Lumpur: Dewan Bahasa & Pustaka, 1998.
Azhari, Aidul Fitriciada. UUD 1945 sebagai Revolutiegrondwet Tafsir Poskolonial atas
Gagasan-gagasan Revolusioner dalam Wacana Konstitusi Indonesia. Yogyakarta:
Jalasutra, 2011.
Azhari, Aidul Fitriciada. The Essential of the 1945 Constitution and the Agreement of the
Amandment of the 1945 Constitution: A Comparison of the Constitutional Amandment¸ Jurnal Hukum 18 (2011): 305-319.
Gullick, John. Malaysia: Economic Expansion and National Unity. London: Ernest Benn, 1981.
Habermas, Jurgen. The Inclusion of the Other: Studies in Political Theory. Cambridge, Mass. : The MIT Press, 1999.
Hatta, Muhammad. “Ke Arah Indonesia Merdeka.” In Masalah Kenegaraan, edited by
Miriam Budiardjo. Jakarta: Gramedia, 1977.
Hooker, M.B.. Reading in Malay Adat Laws. Singapore: Singapore University Press, 1970.
Huda, Miftakhul et al.. Naskah Komprehensif Perubahan Undang-Undang Dasar Negara
Republik Indonesia Tahun 1945 Book IV. Jakarta: Sekretariat MKRI, 2010.
Jewa, Tunku Sofiah, Salleh Buang & Yaacob Hussain Merican eds.. Tun Mohammed
Suffian’s An Introduction to the Constitution fo Malaysia. Selangor My: Pasifica Publication, 2007.
from the Centre and the Region, edited by Sri Kuhnt-Saptodewo, Volker Grabowsky,
dan Martin Grosheim. Wiesbaden : Harrasowitz, 1997.
Kelsen, Hans. General Theory of Law and State. New York: Russel & Russel, 1973.
Kusuma, RM. A.B.. Lahirnya Undang-Undang Dasat 1945. Jakarta: Badan Penerbit Fakultas Hukum Universitas Indonesia, 2004.
Lombard, Denys. Nusa Jawa: Silang Budaya III Warisan-warisan Kerajaan Konsentris.
Translated by Winarsih Partainingrat Arifin, Rahayu S. Hidayat, Nini Hidayati Yusuf. Jakarta: Gramedia, 2008.
Nasroen, M. Dasar Falsafah Minangkabau. Jakarta: Bulan Bintang, 1971.
Noer, Deliar. “Perkembangan Demokrasi Kita.” In Demokrasi dan Proses Politik, edited by
Amien Rais. Jakarta; LP3ES, 1986.
Popper, Karl. Conjectures and Refutations. London/New York: Routledge, 2007.
Rambe, Safrizal. Sarekat Islam Pelopor Bangkitnya Nasionalisme Indonesia 1905-1942.
Jakarta: Yayasan Kebangkitan Insan Cendekia, 2008.
Rothermund, Dietmar. “Nationalism and the Reconstruction of Traditions in Asia.” In
Nationalism and Cultural Revival in Southeast Asia: Perspectives from the Centre and the Region, edited by Sri Kuhnt-Saptodewo, Volker Grabowsky, dan Martin
Grosheim. Wiesbaden : Harrasowitz, 1997.
Samad, YB Datuk Abdul. “Kemurnian dalam Adat Perpatih.” In Kertas Kerja Seminar Persejarahan dan Adat Perpatih, Negeri Sembilan: Majelis Belia Negeri, 1974.
Siddik, Abdullah. Pengantar Undang-Undang Adat di Malaysia. Kuala Lumpur: Penerbit University Malaya, 1975.
Soekarno. Res Publica Sekali Lagi Res Publica. Jakarta: Kementrian Penerangan RI, 1959.
