constitutional system. On the other hand, the constitutional amendment recognizes and preserves customary or adat law at the local or regional structure. However, the recognition of adat law at the local structure demonstrates more on preservation than a reconstruction of tradition. Preservation has purpose mainly to maintain the existence of tradition, while the reconstruction has purpose to apply tradition in a modern state structure.
Generally, it can be concluded that the amendment of the 1945 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.
BIBLIOGHRAPHY
Anderson, Benedict R. 1990.O’G,Language and Power Exploring Political Cultures in Indonesia, Ithaca: Cornell University Press.
Austin, J. 1954. The Province of Jurisprudence. (ed. H.L.A. Hart). London: George Weidenfeld & Nicholson.
Azhari, Aidul Fitriciada. 2010. Tafsir Konstitusi Pergulatan Mewujudkan Demokrasi di Indonesia. Solo: Jagad Abjad.
Azhari, Aidul Fitriciada. 2011.UUD 1945 sebagai Revolutiegrondwet Tafsir Poskolonial atas Gagasan-gagasan Revolusioner dalam Wacana Konstitusi Indonesia. Yogyakarta: Jalasutra.
Budiardjo, Miriam. 1977. Masalah Kenegaraan. Jakarta: Gramedia.
Glenn, H. Patrick. 2000. Legal Tradition of the World. Oxford: Oxford University Press. Habermas, Jurgen. 1999. The Inclusion of the Other: Studies in Political Theory. Cambridge,
Mass. : The MIT Press.
Huda, Miftakhul Huda et al. 2010. Naskah Komprehensif Perubahan Undang-Undang Dasar Negara Republik Indonesia Tahun 1945. Jakarta: Sekretariat MKRI.
Huntington, Samuel P., 1995. Gelombang Demokrasi Ketiga, Jakarta: Pustaka Utama Grafiti. Kartodirdjo, Sartono. “From Ethno-Nationalism to the “Indonesia Merdeka” Movement
1908-1925”. Sri Kuhnt-Saptodewo, Volker Grabowsky, dan Martin Grosheim (eds.). 1997. Nationalism and Cultural Revival in Southeast Asia: Perspectives from the Centre and the Region, Wiesbaden : Harrasowitz.
Kelsen, Hans, 1973. General Theory of Law and State. New York: Russel & Russel. Kusuma, RM. A.B., 2004. Lahirnya Undang-Undang Dasat 1945. Jakarta: BP Fakultas
Hukum Universitas Indonesia.
Lev, Daniel S., “Colonial Law and the Genesis of the Indonesian State.”Indonesia 40 (October 1985): 57-74.
Lukito, Ratno. 1998. Pergumulan Antara Hukum Islam dan Adapt di Indonesia. Jakarta: INIS.
Popper, Karl. 2002. Conjectures and Refutations. London/New York: Routledge.
Rambe, Safrizal. 2008. Sarekat Islam Pelopor Bangkitnya Nasionalisme Indonesia 1905-1942. Jakarta: Yayasan Kebangkitan Insan Cendekia.
Rothermund, Dietmar, “Nationalism and the Reconstruction of Traditions in Asia”. Sri Kuhnt-Saptodewo, Volker Grabowsky, dan Martin Grosheim (eds.). 1997. Nationalism and Cultural Revival in Southeast Asia: Perspectives from the Centre and the Region, Wiesbaden : Harrasowitz.
Saptodewo, Sri Kuhnt-, Volker Grabowsky, dan Martin Grosheim (eds.). 1997. Nationalism and Cultural Revival in Southeast Asia: Perspectives from the Centre and the Region, Wiesbaden : Harrasowitz.
“SBY: Tak Mungkin Ada Monarki di Indonesia,”Harian Yogya, 26 November 2010.
not use a model of relative-particular to reconstruct the tradition in the constitutional amendment. Conversely, the constitutional amendment conducts a separated agenda: adopting the Western constitutional system, but at this same time accept the Islamic tradition to be applied simultaneously in the Indonesian constitutional system.
Both non-Javanese and Islamic tradition have a same interest to reject authoritarian interpretation of Javanese tradition so that both traditions adopt Western constitutional system that considered more democratic. However, because there is no conflict between non-Javanese and Islamic tradition, so there is no resistance to accept Islamic tradition in the constitutional system of Indonesia. Consequently, although structurally the constitutional amendment adopts the Western constitutional system, particularly American presidential system, but Islamic law can be operated as a part of Indonesian constitutional law.
X. CONCLUSION
Conceptually, tradition cannot be distinguished from modern rationality because rationality in the Western modern society essentially is a tradition derived from the ancient Greek civilization. Tradition, similar with law or legislation, has a social function to maintain social order and certainty. Therefore, in line with development of nationalism and modern nation state, many countries maintain their tradition by a reconstruction of tradition in each constitutional system.
so that tradition should be reconstructed by extension and adaptation with size and character of a modern nation-state.
Historically, before the amendment of the 1945 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. The reconstruction of tradition that practiced according to absolute particular model has created two authoritarian regimes, namely Guided Democracy and New Order. Those regimes applied the 1945 Constitution based on their interpretation of native democracy of Indonesia that referred to Javanese tradition. The interpretation of Guided Democracy emphasized on a guided deliberation process, which guided by President as the highest national leader. While New Order more emphasized on the unity between the State and the people according to the idea of Soepomo about the integrality state.
The constitutional amendment has no discourse about reconstruction of tradition at the national structure. Conversely, the constitutional amendment adopts a pure presidential system that practiced in the American presidential system. The adoption has purpose to create a constitutional system that democratic, advanced, and rational. This perspective shows that the constitutional amendment has been guided by a distinction between tradition and rationality. According to Karl Popper, this perspective is incorrect, because rationality in the modern Western society essentially derived from tradition of the ancient Greek civilization. Consequently, the rejection of tradition in the constitutional amendment based on rationality purpose has no a strong academic reason.
constitutional system. On the other hand, the constitutional amendment recognizes and preserves customary or adat law at the local or regional structure. However, the recognition of adat law at the local structure demonstrates more on preservation than a reconstruction of tradition. Preservation has purpose mainly to maintain the existence of tradition, while the reconstruction has purpose to apply tradition in a modern state structure.
Generally, it can be concluded that the amendment of the 1945 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.
BIBLIOGHRAPHY
Anderson, Benedict R. 1990.O’G,Language and Power Exploring Political Cultures in Indonesia, Ithaca: Cornell University Press.
Austin, J. 1954. The Province of Jurisprudence. (ed. H.L.A. Hart). London: George Weidenfeld & Nicholson.
Azhari, Aidul Fitriciada. 2010. Tafsir Konstitusi Pergulatan Mewujudkan Demokrasi di Indonesia. Solo: Jagad Abjad.
Azhari, Aidul Fitriciada. 2011.UUD 1945 sebagai Revolutiegrondwet Tafsir Poskolonial atas Gagasan-gagasan Revolusioner dalam Wacana Konstitusi Indonesia. Yogyakarta: Jalasutra.
Budiardjo, Miriam. 1977. Masalah Kenegaraan. Jakarta: Gramedia.
Glenn, H. Patrick. 2000. Legal Tradition of the World. Oxford: Oxford University Press. Habermas, Jurgen. 1999. The Inclusion of the Other: Studies in Political Theory. Cambridge,
Mass. : The MIT Press.
instrument of collectivism in economy to achieve social justice for all the people of Indonesia. Meanwhile, the founders enacted the constitutional provisions to preserve adat law and native structure that practiced in several regions and villages in the entire of Indonesia. Those included preservation of monarchy that until today practiced in Province of Yogyakarta and various native villages such as desa in Java, nagari in Minangkabau-West Sumatra, gampong in Aceh, dusun and marga in South Sumatra, huta and kuria in Tapanuli-North Sumatra (Kusuma, 2004: 359-370).
VIII. DEVELOPMENT OF THE RECONSTRUCTION OF TRADITION BEFORE THE
CONSTITUTIONAL AMENDMENT
Practically, the ideas of reconstruction of tradition had created two authoritarian regimes that occured during the Guided Democracy and the New Order eras. However, the same idea also created a democratic system during the parliamentary government. In fact, authoritarian regimes were evolved after the 1945 Constitution reapplied on 5 July 1959. Meanwhile, democratic regime was occured under the Provisional Constitution during 1950s. Those facts made an understanding that the reconstruction of tradition in the 1945 Constitution was interpreted based on authoritarian sense. Moreover, democratic practice during the parliamentary era was also viewed as an expression of liberal democracy that contradicted with the genuine democracy of Indonesia.
The following section will describe development of the reconstruction of tradition that practiced in those regimes: the parliamentary democracy, the Guided Democracy, and the New Order.
independence revolution during 1945-1949, the parliamentary democracy was continued under the Constitution of the Republic of the United State of Indonesia and the Provisional Constitution of 1945. Particularly, the Provisional Constitution of 1950 maintained five principles of Pancasila, which reconstructed by the founders from traditions. In addition, the Provisional Constitution maintained three provisions of the 1945 Constitution—called as the essential of the 1945 Constitutional—that are article 27, 29, and 33 of the 1945 Constitution. Those articles expressed the ideas of reconstruction of traditions, particularly article 29 and 33. Article 29 contains the principle of monotheism and article 33 consists of collective economy system. Particularly, the Provisional Constitution recognized collectivism in property right, which determined in article 26 (3) that: “Property right has a social function.”
In addition, the constitution determined explicitly the application principles of deliberation and representative in system of government in every stage: national, regional, and village communities (art. 131 and 132).
government was ineffective to implement the national development (Azhari, 2011; Nasution, 1993).
Therefore, President Soekarno as a Head of State decided to reapply the 1945 Constitution to settle ideological conflict and separatism and to ensure the implementing of national development. Then on 5 July 1959, President Soekarno promulgated a Presidential Decree that comprises: (1) dissolving the Constitutional Assembly, (2) restoring the 1945 Constitution and (3) the establishment of the Provisional People’s Consultative Assembly
(MPRS) and the Provisional Supreme Advisory Council (DPAS). The Presidential Decree marked the beginning of the Guided Democracy era.
Secondly, the Guided Democracy was a system that created by President Soekarno as the interpretation of the 1945 Constitution based on the original democracy of Indonesia. However, his interpretation was different from his opinion when constitutional making process in 1945. If at the time of the constitutional making process Soekarno saw the Indonesian tradition as a democratic tradition with social justice, then in the Guided Democracy he interpreted the Indonesian tradition based on autocratic paradigm. Soekarno explained about the Guided Democracy as follows:
The Guided Democracy is a democracy that suitable with character and life of Indonesian nation…. The core of “guided” in the Guided Democracy is a deliberation, but a deliberation that “led by wisdom,” not by debates and political strategy that finished with power struggle and voting based on “pro and contra”. The results of “deliberation that led by wisdom” then handed over to the President, who also elected by “deliberation” (Soekarno, 1959:20)
over all of the constitutional process and put it under his control. He believed democracy would be more effective to achieve the social prosperity if it can be controlled by a concentric leadership. Structurally, his opinion can be realized with the presidential government that provides legitimacy to President to develop a concentric government. In addition, the interpretation of deliberation as a process without voting enabled President to interfere deliberation process in representative bodies.
In fact, there was no significant rejection among the people against the idea of Guided Democracy. It does not mean that people were fed up with the political conditions or that they were powerless to fight President Soekarno that backed by the military. However, people felt that a concentric government and held by a strong leader were more suitable with the native structure of Indonesian society. Particularly in Javanese tradition, the region where Soekarno came from, the state or Nagara, is believed as a concentric power with the leader as the center whose absolute power controlled not only human and society but also the universe (Lombard, 2008:60-71; Seomardjan, 1961:113-114).
Thirdly, the New Order, basically, maintained the interpretation of Soekarno about the genuine Indonesian democracy. However, New Order officially developed a discourse as an order to correct deviation of the Pancasila and the 1945 Constitution that practiced by Soekarno and his Guided Democracy. Therefore, the New Order claimed that they practice a system of democracy consistent with Pancasila as the state ideology and the 1945 Constitution as the state constitution.
Nevertheless, the interpretation of genuine democracy did not refer to Soekarno anymore. The New Order referred to the idea of Soepomo about the integrality state (Decree of MPR No. II/MPR/2993). The idea of integrality state provided many benefits to the rulers of the New Order because it gave legitimacy for them who came from the army. It was different with the idea of Guided Democracy that provided legitimacy personally for Soekarno. In addition, it can be exploited to eradicate Soekarno influences in constitutional discourse of Indonesia.
of Pancasila). The control of activities were executed by various operation of intelligence and political oppression, included kidnapping, torturing, and killing.
New Order regime, however, understood “manunggaling kawulo lan Gusti” not only in rational sense, but also in mystical sense, which expressed Javanese tradition. Therefore, New Order used some mystical terms to legitimize several political or constitutional events, such as Kesaktian Pancasila. Term of “kesaktian” refers to a supernatural or magic power that gained from divine power. Kesaktian Pancasila is a celebration on October first every year to remember a victory day of the army against communism. New Order interpreted the victory of army as a supernatural or magic power of Pancasila in protecting Indonesia.
Those phenomena pointed out that New Order exploited concept of integrality state to legitimize their interests to maintain hegemony in Indonesia. Culturally, those phenomena showed that the New Order interpreted the 1945 Constitution based on Javanese traditions. This was comparable with Soekarno who also used Javanese traditions as a basis for legitimacy of Guided Democracy. Both Soekarno and Soeharto interpreted Indonesia constitutional system as a concentric state, where President or Government as a centre of the State. Soekarno with Guided Democracy interpreted President as the highest national leader as the center of the State, while Soeharto with Democracy of Pancasila positioned President and Government—that controlled by army—as a Gusti (or patron) who gives protection for all the people as a kawulo (or servant) who require protection. This indicates that both Soekarno and Soeharto interpreted the reconstruction of tradition within the 1945 Constitution based on Javanese traditions.
Association of Indonesian Muslim Intellectual (ICMI). That development, obviously, has shifted a constitutional reference from Javanese to Islamic politics. It also means a paradigm shift from Javanese to non-Javanese tradition. It also encouraged Islamic traditions as an antithesis of the concentric Javanese state, which later led to democratization process in Indonesia—in addition affected by democratization trend at global level. Finally, those development forced Soeharto to resign on 21 May 1998, which marked formally the end of the New Order regime after 32 years in power in Indonesia. A reformation era purposed to eradicate the New Order system and build a democratic state in Indonesia. Among the reform agendas, the constitutional amendment was a main agenda that aim to create a more democratic constitution.
In general, both Guided Democracy and New Order interpreted reconstruction of tradition in the 1945 Constitution based on absolute particular model that emphasized on originality of tradition absolutely. The tradition was viewed as norms, institutes, and procedures that different completely from those similar things in modern state. In cultural context, the interpretation referred to Javanese traditions that emphasize on a concentric state, which exploited to provide legitimacy for authoritarian practices.
IX. RECONSTRUCTION OF THE TRADITION AFTER THE CONSTITUTIONAL
AMENDMENT
tradition (or adat) cannot be separated due to tradition had to be evolved based on Islamic law (Kusuma, 2002).
VII. IDEAS ON THE RECONSTRUCTION OF TRADITION AMONG THE
FOUNDING FATHERS
Ideas about the reconstruction of tradition in Indonesia have correlation with growth of nationalism of Indonesia, which has developed since the early 20th century and gained its formation around 1930s. Nationalism of Indonesia was transformed from ethno-nationalism or group-nationalism (groep nationalisme-Dutch) toward Indonesian-nationalism (Indonesiche nationalisme-Dutch). Ethno-nationalism and group nationalism were began with the establishment of Boedi Oetomo on May 20th , 1908 and Sarekat Dagang Islam on February 16th , 1905 (Kartodirdjo, 1997:75-81). Boedi Oetomo was an organization established by Javanese aristocrats (priyayi) with the purpose of maintaining Javanese culture. Meanwhile, Sarekat Dagang Islam was an organization established by Islamic merchants with the purpose of protecting business among Moslem merchants from domination of Chinese and European traders (Rambe, 2008).
The Indonesian nationalism politically obtained its formation on October 28th , 1928 when the Indonesian youth leaders promulgated a political statement called Soempah Pemoeda. The Soempah Pemoeda contains three declarations that are “one country, one nation, one language namely Indonesia.” After this moment, the national movement
Generally, there were two perspectives of the reconstruction of tradition that had been developed among the founding fathers. The first perspective insisted that the reconstruction of tradition had to emphasize on the originality of tradition and preserve the originality in the nation-state structure. The second perspective argued that the reconstruction of tradition had to emphasize on the universal values of tradition so that the traditions could be adapted in the modern nation state. Those perspectives created two models of reconstruction of tradition in the Indonesian constitutional law.
The first perspective was expressed in Soepomo who had main role in constitutional creating of the 1945 Constitution. Soepomo was a professor in Indonesian customary law or adat law whose background as Javanese aristocrat from Solo or the Kingdom of Kasunanan
Surakarta—the center of Javanese culture in Central Java. As an expert in adat law, Soepomo had a tendency to support the adat law to be practiced in Indonesia. In his speech on May 31st 1945, Soepomo argued that every state had each peculiarity in related with his history and characteristics of each society. Consequently, the establishment of Indonesian state had to be adapted to the social structure of Indonesian society and accorded to the recent times, in accordance with—in 1945—the ideas of Indonesian state in the Great East Asia environment (Kusuma, 2004:125).
principle. Perhaps the principle was suitable to their social circumstances, but the principle contradicted to the original character of Indonesian society.
On the contrary to his argument before, Soepomo referred to German ideology: national-socialism; and explained:
[Germany] is based on totalitarian ideology; “das Ganze der politischen Einheit des Volkes” (integration theory). The principle of leader (Führung) as Kernbegriff ein totaler Führerstaat and also they use the principle of the blood and region equation (Blut and Boden Theorie) between leader and people … the national-socialist [is] suitable with Eastern ideology. We know Asian state, namely Dai Nippon is based on the perpetual unity of soul and body between His Majesty Tennoo Heika, between the state and the whole Nippon people. Tennoo is the center of the spirit of whole people. State is based on the family system. Tennoo family namely “Koshitu” is the prime family. The principle of unity and familial (kekeluargaan) is very appropriate with character of Indonesian society (Kusuma, 2004:126).
Based on that argument, Soepomo then argued:
The spirituality structure of Indonesian people has characterization and aspires for the unity of life, the unity between kawulo (people who are protected) and Gusti (patron/protector) that is the unity between the inside and the outside world, between macro cosmos and micro cosmos, between people and their leaders. Every human as an individual, every group in the society and every society in human relations in the world are viewed to have each place and obligation (dharma) according to natural law and purposed to harmony materially and spiritually. Human as an individual does not separate from other individuals or from the outside world, even from the whole of creature; everything is mixture and interdependent…. This is a totalitarian idea, the idea of integration of Indonesian nation that manifested in the genuine constitutional structure (Kusuma, 2004:126).
Soepomo pointed out that the genuine constitutional structure can be found in the villages in Java, Sumatera, and entire Indonesian archipelago. In those villages, state officials were the leader who integrated spiritually with their people and they had obligation to maintain the unity and harmony in the society (Kusuma, 2004:126).
integralistik” (orintegralistic state): where the state were united with all the people, the state were transcend all of individual and group in any sector. In the integralistic state, there was no dualism between state and individual; no contradiction between the state and the individual aspiration; no dualism between “Staat und staatsfreie Gesselschaft”; and
consequently there was no necessary for human rights and freedom (Grund und Freiheitsrechte) of individual contra state (Kusuma, 2004:127).
However, Soepomo denied that the integralistic state would not recognize the existence of groups or individuals. Soepomo confirmed that the state recognize the existence of groups and individuals in society, but every group and individual had to be aware about their position as the organic part of society. They had obligation to maintain unity and harmony among every part (Kusuma, 2004: 127).
The Soepomo’s paradigm demonstrated that although majority of population in
Indonesia believe in Islam, geographically Indonesia was not Islamic country. For that reason, Islam was not the particular characteristics of Indonesian society. Islam was only a strange element in the Indonesian culture. The fact that Islam was the majority religion cannot be used as a basis for legitimizing Indonesia as an Islamic state. In his view, if Indonesia was established as an Islamic state based on the majority population, then Indonesia would unite with the majority. It was opposed with the unity of the national state. Besides, it would produce problems of “minderheden” (or minority group), that was problem
of minority groups such as Christian, Buddhism, or Hinduism. Consequently, Indonesian state had to be separated from religion, particularly Islam, in order to maintain the unity of the national state (Kusuma, 2004:130).
The rejection of Soepomo against Islamic law essentially expressed his stance as a professor in adat law who supported the receptie theory—a theory that distinguished and separated adat law from Islamic law. Additionally, Soepomo had a background as a Javanese aristocrat (or priyayi) that culturally had a lack of respect to Islamic faith. Politically, the receptie theory cannot be separated with Dutch legal policy in reducing Islamic political influence in the Netherlands India. Based on that policy, Islam had to be separated from politics but at the same time Moslems were provided a privacy to do their Islamic worship freely (Lukito, ). As the consequence, although Soepomo proposed to reconstruct traditions— that he called the genuine constitutional structure—in the national state, he denied Islam traditions to be reconstructed in constitutional structure of Indonesia. The genuine constitutional structure in his sense was only the adat law, not including the Islamic law.
numbers. Consequently, Indonesia had to ensure a system of government that continually united the soul to the people. It means Indonesia had to create a system of consultative body (badan permusyawaratan). The Head of State would interact continuously with the Consultative Body in order to know and to feel a sense of justice and ideals of the people. Soepomo said that the consultative system refers to adat law. In the genuine adat society, the Head of Village (Kepala Desa) organizes popular will; he gave the formation (Gestaltung) to sense of people justice. Soepomo related that character with the characteristics of messiah, which in Indonesia traditions was called Ratu Adil, who eagerly awaited by the people of Indonesia for a long time (Kusuma, 2004:132).
Finally, in the matter of relationship between the state and the economy, Soepomo proposed a state socialism that he believed to be a manifestation of the integralistic state. He described state socialism:
The vital corporations must be controlled by the State … [such as] transportation, electricity, forestry. So does the land. Essentially, the state also controls all the land. The vital mining that important for the State must be controlled by the State. Seeing the nature of Indonesia as an agricultural society, the state must ensure the farm remains dominated by farmers…. In economy field, the state will be organized based on principle of brotherhood of family (kekeluargaan) … Mutual help system, cooperative system must be practiced to be a basis of the economy of Indonesia (Kusuma, 2004:132).
modern times. In relation with Islam, Soepomo also did not deny Islamic religion in complete. He denied Islam in its form as Islamic state, but he accepted Islam as ethics. His rejection was based on geographic ground to show that Indonesia had peculiar tradition that distinct from Islamic tradition. However, Soepomo argued that the reconstruction of tradition in the modern state of Indonesia had to be based on the genuine constitutional structure of Indonesian society that he formulated as the integralistic state.
The second perspective was represented by Soekarno, Mohammad Hatta and Muhammad Yamin. Soekarno was a prominent nationalist leader and the first President of Indonesia whose background as Javanese aristocrat. Muhammad Hatta was the vice President of Indonesia who was famous as the founder of Indonesian economy system. Hatta and Yamin came from Minangkabau at West Sumatra, which well-known as one of region that produced many prominent national figures in Indonesia. Soekarno and Mohammad Hatta proclaimed the proclamation of Indonesia on August 17th 1945. They both represented the two major traditions in Indonesia—Javanese and Sumatra or non-Javanese—was known as “dwi tunggal” (two in one). Like Hatta, Muhammad Yamin also came from Minangkabau
West Sumatra. He was actually a lawyer, but he was interested in history and written many books in history and literature.
messianic as an expectation about social justice. Therefore, Indonesia had to accept social justice principle, which guaranteed not only equality in political field, but also in economy field in the sense a general welfare. Thus, Indonesia had to institute a constitutional structure that represented democracy in both politic and economy (Kusuma, 2004:162-164).
Particularly, Soekarno proposed Pancasila—means “the five principles”, which was finally accepted by all of the founders as a fundament of the state. Soekarno called Pancasila as a Weltanschauung (or a world view) and a philosofische grondslag (or a fundamental philosophy). Pancasila contained five principles that are nationality of Indonesia, internationalism or humanism, consensus or democracy, social welfare, and monotheism. Then Soekarno squeezed Pancasila into three principles: socio-nationalism, socio-democracy, and monotheism. Finally, Pancasila pressed those principles into one principle that is the gotong royong or the mutual assistance. For Soekarno, the gotong royong was a dynamic
collectivism that represented an authentic tradition of Indonesian people (Kusuma, 2004:165).
Related with Islam, Soekarno had an opinion that Moslems in Indonesia had to use permusyawaratan or deliberation process as the way to express their interests and aspirations
in law or statutes. If Moslems wanted to practice Islamic law in Indonesia, they must effort in deliberation process in legislature so that every law created by legislature will reflect Islamic law. So do the Christian, Buddhists, or Hindus, they have to struggle by deliberation process in legislature to create law based on their interest (Kusuma, 2004:161).
Muhammad Hatta has a similar position with Soekarno. Hatta also opposed individualism and proposed collectivism as a basis of the state. He described collectivism as gotong royong (or mutual assistance) and usaha bersama (or common endeavor). However,
Hatta disapproved of Soepomo about totalitarian or integrality state notion. He worried that Indonesia would develop into a totalitarian state as practiced in Russia and Germany. Hatta confirmed that collectivism gave people freedom and right to express his opinion. He defined that collectivism will create “the caring state” (or negara pengurus), not the repressive state
(Kusuma, 2004:355).
Structurally, Hatta connected collectivism with the representation of collective bodies in the People’s Consultative Assembly (MPR). According to proposal of constitution, the
MPR has three representations, which are the members of the House of Representatives (DPR), representatives of regional, and representatives of functional groups. Hatta confirmed that the representatives of functional groups are the manifestation of social collectivism (Kusuma, 2004:405).
Likewise, the control of land based on collectivism that mentioned as the right of ulayat. The right of ulayat is a collective right to control land tenure in village (Hatta, 1977:42-43).
Meanwhile Muhammad Yamin in his notes gave some opinion about traditions that sourced from Islamic law and adat law. He proposed deliberation (or permusyawaratan) as tradition of Islamic law and consensus (or mufakat) that he viewed as adat law. He also suggested representatives (or perwakilan) as a kind of adat law and wisdom (or kebijaksanaan) that he identified as rationalism (Kusuma, 2004:98). Particularly, he proposed
a sharia government that represented in the authority of Supreme Court to review statute against the constitution, the recognized adat law, and Islamic law or sharia (Kusuma, 2004:98, 385).
Generally, Soekarno, Hatta, and Yamin have a similar position in their opinion about the reconstruction of tradition. They believe Indonesia had to be established based on the genuine tradition of Indonesian society, but the tradition should be adjusted with the modern democracy. However, democracy that was suitable with Indonesian tradition is democracy with social justice, a democracy based on collectivism, which is reflected in deliberation (permusyawaratan) and representative system. This concept is expressed in the fourth principle of Pancasila: “democratic life led by wisdom of thoughts in deliberation/ representatives.”
in a modern sense as a system of democracy to give equality in economy and general prosperity.
Soekarno, Hatta, and Yamin believed that the reconstruction of tradition had function to maintain a certainty for people to reach their purpose to realize social justice. Refers to Popper, there was a reason to reconstruct the tradition to maintain social regularity that created by tradition during centuries. In the other sense, there is a belief that solely western democracy cannot ensure Indonesia to get social justice, even Indonesia will fall into destruction. Therefore, the Indonesian founders chose to reconstruct the tradition into the constitution to ensure Indonesia could be realized social justice for all people.
Contestation between two paradigms—that are absolute and relative particular—in the constitutional creating finally result a compromise in a constitution: the 1945 Constitution. There are several points of the compromise that related with reconstruction of tradition. Generally, the founders accepted Pancasila as the basic of the state of Indonesia. Pancasila consists of five principles: monotheism, universal humanism, nationalism of Indonesia, deliberative and representative democracy, and social justice. The founders believed that Pancasila is a kind of reconstruction of tradition that has been adapted to modern state structure. The founders agreed to use republic as form of the state. It confirmed that the founders refused monarchy as an expression of feudalism. In contrast, they accepted republic as a continuity of democracy that practiced in villages (or desa).
Particularly, the founders accepted deliberation (or permusyawaratan) as a tradition that should be adjusted with the modern state. Deliberation should be practiced with rationalism or wisdom based on principle of people representatives. Deliberation is reflected structurally in the form of People’s Consultative Assembly (MPR), which represents
instrument of collectivism in economy to achieve social justice for all the people of Indonesia. Meanwhile, the founders enacted the constitutional provisions to preserve adat law and native structure that practiced in several regions and villages in the entire of Indonesia. Those included preservation of monarchy that until today practiced in Province of Yogyakarta and various native villages such as desa in Java, nagari in Minangkabau-West Sumatra, gampong in Aceh, dusun and marga in South Sumatra, huta and kuria in Tapanuli-North Sumatra (Kusuma, 2004: 359-370).
VIII. DEVELOPMENT OF THE RECONSTRUCTION OF TRADITION BEFORE THE
CONSTITUTIONAL AMENDMENT
Practically, the ideas of reconstruction of tradition had created two authoritarian regimes that occured during the Guided Democracy and the New Order eras. However, the same idea also created a democratic system during the parliamentary government. In fact, authoritarian regimes were evolved after the 1945 Constitution reapplied on 5 July 1959. Meanwhile, democratic regime was occured under the Provisional Constitution during 1950s. Those facts made an understanding that the reconstruction of tradition in the 1945 Constitution was interpreted based on authoritarian sense. Moreover, democratic practice during the parliamentary era was also viewed as an expression of liberal democracy that contradicted with the genuine democracy of Indonesia.
The following section will describe development of the reconstruction of tradition that practiced in those regimes: the parliamentary democracy, the Guided Democracy, and the New Order.
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.
V. TWO MODELS RECONSTRUCTION OF TRADITION
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 nation state and maintaining their traditions at the same time. In this situation, reconstruction 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
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 with the values of modern state. Second, it emphasizes on absolute aspect of genuine 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).
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.
VI. 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
IV. 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.
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, has just that same function of bringing some order and rational predictability into the social 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.
(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’ nation states, which were established based on national consciousness or cultural that 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).
“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.
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.
V. TWO MODELS RECONSTRUCTION OF TRADITION
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 Western values and the practice of constitutional tradition that still living in the society.
II. PURPOSE AND OUTPUT OF RESEARCH
1945 Constitution. The output of this step is an article for publication in an international journal or an accredited national journal.
In the second year, the research will be focused on empirical and comparative analysis. Output of this step is an article for publication in an international or an accredited national journal and a textbook.
In the last step, in the third year, the research will be focused on the arrangement of a tradition reconstruction model based on the result of the first and second year. The mode, then will be projected into the constitution system of Indonesia, so that it can be applied in the development of constitutional system of Indonesia. Output of the third year is an article for publication in the international or the accredited national journal and a textbook (volume II or revision edition).
III. METHODOLOGY
In the first year, the research is conducted by analyzing the text of the 1945 Constitution and other supporting documents. The text analysis will also be strengthened by interview with some key informants who engage in and know about the constitution amendment. The documentary research is conducted in Solo, Jakarta, and Yogyakarta.
In the second year, the research will be conducted by interview with key informants in several places that considered have the significant influences for development of the constitutional system in Indonesia. Those are Javanese, Minangkabau (West Sumatra), and Bugis-Makassar (South Sulawesi) traditions. In addition, this study will make comparison with reconstruction of tradition in Malaysia which, in practice, remains maintain tradition that applied simultaneously with Westminster parliamentary system.
RECONSTRUCTION OF TRADITION
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.
Keywords : the Indonesian Constitution, reconstruction of tradition, original democracy, adat law
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 State to recognize and respect for units of government having privileges.
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.
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 of the 1945 Constitution states that the head of regional government should be elected 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.
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 tradition into modern life in order the national constitutional system has foundation on the living values that developed within society. Therefore, the constitutional system will be 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.
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 Western values and the practice of constitutional tradition that still living in the society.
II. PURPOSE AND OUTPUT OF RESEARCH
LAPORAN AKHIR HASIL PENELITIAN
HIBAH KOMPETENSI TAHUN I
MODEL REKONSTRUKSI TRADISI BERNEGARA
DALAM KONSTITUSI PASCAAMANDEMEN UUD 1945
Oleh :
Dr. Aidul Fitriciada Azhari, SH (Ketua Tim Peneliti) Iswanto, SH (Anggota Tim Peneliti)
DIBIAYAI OLEH DP2M DITJEN DIKTI
BERDASARKAN SURAT PERJANJIAN PELAKSANAAN PENELITIAN HIBAH KOMPETENSI NOMOR: 158/SP2H/PL/Dit.Litabmas/III/2012
TERTANGGAL 7 MARET 2012
DAFTAR ISI
LEMBAR PENGESAHAN DAFTAR ISI
KATA PENGANTAR
PENGANTAR LAPORAN AKHIR HASIL PENELITIAN
INTRODUCTION ………... 1
PURPOSE AND OUTPUT OF RESEARCH ……… 6
METHODOLOGY ……… 7
TRADITION, POSITIVE LAW AND NATION STATE ………. 7
TWO MODELS RECONSTRUCTION OF TRADITION ……… 12
ISLAMIC LAW AND ADATLAW ……… 15
IDEAS OF THE RECONSTRUCTION OF TRADITION AMONG THE FOUNDING FATHER ……… 17
DEVELOPMENT OF THE RECONSTRUCTION OF TRADITION BEFORE THE CONSTITUTIONAL AMENDMENT ……… 29
RECONSTRUCTION OF TRADITION AFTER THE CONSTITUTION AMENDMENT ……….. 35
CONCLUSION ……….. 44
BIBLIOGHRAPHY ………. 46 LAMPIRAN
1. BUKU BESAR
KATA PENGANTAR
Bismillahi al-Rahmani al-Rahiim,
Puji syukur ke hadlirat Allah SWT, hasil penelitian Hibah Kompetensi Tahun Pertama yang berjudul : “Model Rekonstruksi Tradisi Bernegara dalam Konstitusi Pasca-amandemen UUD 1945” telah selesai. Sesuai dengan luaran tahun pertama berupa naskah publikasi untuk
jurnal internasional atau nasional terakreditasi, maka hasil penelitian ini disusun dalam bentuk naskah publikasi berbahasa Inggris untuk penerbitan jurnal internasional. Sebagian dari hasil penelitian itu akan dipersiapkan juga dalam bentuk naskah berbahasa Indonesia untuk penerbitan jurnal nasional terakreditasi.
Hasil penelitian tahun pertama ini direncanakan akan dilanjutkan dengan penelitian tahun kedua yang lebih menekankan pada aspek empiris dan komparasi, dengan menggali praktek tradisi di beberapa daerah serta dengan melakukan perbandingan dengan rekonstruksi tradisi yang dilakukan oleh negara Malaysia.
Besar harapan penelitian ini dapat memberikan manfaat kepada perkembangan kehidupan negara Indonesia, terutama perkembangan kehidupan ketatanegaraan bangsa Indonesia.
November 2012
PENGANTAR LAPORAN AKHIR
PENELITIAN HIBAH KOMPETENSI TAHUN I
Judul : MODEL REKONSTRUKSI TRADISI BERNEGARA DALAM
KONSTITUSI PASCAAMANDEMEN UUD 1945 Peneliti : Dr. Aidul Fitriciada Azhari, SH (Ketua)
Iswanto, SH (Anggota)
PENGANTAR
Penelitian Hibah Kompetensi dengan judul “MODEL REKONSTRUKSI BERNEGARA DALAM KONSTITUSI PASCAAMANDEMEN UUD 1945” ini
merupakan penelitian yang dirancang untuk kegiatan selama 3 (tiga) tahun.
Target tahun pertama ini adalah deskripsi tentang gagasan dan norma tentang
rekonstruksi tradisi dalam konstitusi Indonesia, baik sebelum amandemen maupun setelahnya. Penelitian tahun pertama ini diharapkan juga dapat mendeskripsikan perkembangan secara normatif rekonstruksi tradisi dalam konstitusi Indonesia. Penelitian dokumentasi ini dilakukan di kota Solo, Jakarta (Perpustakaan Nasional, Perpustakaan MKRI, Perpustakaan MPR-DPR), Yogyakarta (Perpustakaan Universitas Gadjah Mada). Selain itu untuk memperkuat penelitian dokumentasi akan dilakukan wawancara terhadap beberapa narasumber di kota-kota tersebut untuk mengklarifikasi data yang terdapat dalam dokumen. Luaran tahun pertama ini adalah artikel untuk jurnal terakreditasi nasional dan/atau internasional.
Tahun kedua, penelitian akan difokuskan pada analisis yang bersifat empiris dan
