AN OUTLINE OF THE EVOLUTION OF THE CONSTITUTIONAL LAW
IN INDONESIA
By Laurel Heydir
Department of Constitutional Law Sriwijaya University Law School
Section I:
From the Revolutionary Constitution of 1945 to the Constitutional Reform of 1999–2002
1. On behalf of the Indonesian people, Soekarno and Hatta declared the independence of Indonesia in Jakarta on 17th of August 1945.
2. The day after this Proklamasi Kemerdekaan, the Panitia Persiapan Kemerdekaan Indonesia (PPKI, the Preparatory Committee for the Independence of Indonesia) ratified the
Undang-Undang Dasar Negara Republik Indonesia Tahun 1945i (the Constitution of the State of the
Republic of Indonesia)–popularly abbreviated as UUD 1945–on 18th of August 1945.
3. The UUD of 1945 adopted–with slight modifications–the existing Dutch East Indies institutions as the primary state institutions for the new Republic of Indonesia.
4. The Volksraad became the Dewan Perwakilan Rakyat (DPR, the House of Representatives),
the Raad van Nederlands-Indië became the Dewan Pertimbangan Agung (DPA, the Advisory
Council of State), the Hooggerechtshof became the Mahkamah Agung (MA, the Supreme Court), and the Algemene Rekenkamer became the Badan Pemeriksa Keuangan (BPK, the State Audit Agency).
5. The Gouverneurs-Generaal van Nederlands-Indië was modified (and improved) and named
as the Presiden (the President) of the Republic of Indonesia and the
Luitenant-Gouverneur-Generaal (the Lieutenant Governor) became the Wakil Presiden (the Vice President).
6. To replace the Opperbewind, which previously an authorised body to appoint (and to dismiss) the Governor-Generals of the Dutch East Indies, the UUD of 1945 invented the
Majelis Permusyawaratan Rakyat (MPR, the People’s Assembly/the Parliament) that
[functional] groups (utusan golongan). The MPR serves as the supreme state institution that exercises the sovereignty of the Indonesian people, including to elect the President (and the Vice President)–by a majority vote–and to receive (or to reject) Presidential Reports.
7. Clause II of the Transitional Provisions of the UUD of 1945 states that all other existing state institutions (and regulations) [of the ex-Dutch East Indies] should continue to function so long as they have not been replaced by new ones in accordance with the UUD of 1945. 8. However, the UUD of 1945 was ineffective due to political disturbances and military
conflicts as resulted from the disputes between Indonesia and the Netherlands.
9. Preceded by several negotiations–such as the Linggarjati Agreement (1946/1947), the Renville Agreement (1948) and the Roem–van Roijen Agreement (1949)–, the UN Commission for Indonesia sponsored discussions in Jakarta which, finally, decided that the Round Table Conference would be held in Den Haag (The Hague) in the near future.
10.The Conference was conducted on 23rd of August to 2nd of November 1949 and participated by representatives of the Netherlands, delegates of the Republic of Indonesia and the
Bijeenkomst voor F ederaal Overleg (BFO, the Federal Consultative Assembly).ii The
Conference, which was officially closed in the Dutch Parliament Building on 2nd of November 1949, ratified several agreements, namely: a Charter of Transfer of Sovereignty– over the entire territory of the ex-Dutch East Indies to the Republik Indonesia Serikat (RIS, the Republic of the United States of Indonesia);iii a Statute of Netherlands–Indonesian Union; a draft Constitution (called: the Konstitusi RIS) and other agreements on economic, social and military affairs.
11.According to the Treaty, the Dutch agreed to transfer the sovereignty by 30th of December 1949. After debating the Agreement, the Dutch Parliament (the Upper and Lower Houses) ratified it on 21st of December 1949 by the two-thirds majority. Meanwhile, the Komite
Nasional Indonesia Pusat (KNIP, the Central Indonesian National Committee–that served as
the Indonesian Parliament in transition)–ratified the Agreement on 14th of December 1949. The transfer of sovereignty was made on 27 of December 1949.
12.Political dynamics in Indonesia, especially resulted from the resistances of the dissatisfied Indonesian nationalists toward The Hague Agreement, have led to the reunification of Indonesia. The Provisional Constitution (the UUD Sementara) was drafted in 1950 and came into force on 17th of August 1950, replacing the Konstitusi RIS. Of course this self-changing Constitution has made upset the Dutch that accused Indonesia of denying the Agreement. However, history tells us that such Dutch objection cannot prevent the sustainability of the unitary state of the Republic of Indonesia.
14.These elections were participated by 29 political parties. The big four that won and shared more than three-quarters of the vote were the Partai Nasional Indonesia (PNI, the Indonesian National Party–22.3%), the Majelis Syuro Muslimin Indonesia (Masyumi, the Advisory Assembly of the Muslims in Indonesia–20.9%), the Nahdlatul Ulama (NU, the Revival/ Awakening of the Islamic Scholars–18.4%), and the Partai Komunis Indonesia (PKI, the Indonesian Communist Party–16.4%).
15.However, the elected legislature only lasted for four years. Considerable debates and conflicts between different political factions in the Konstituante resulted in Parliamentary deadlock with political turmoil that might jeopardize the stability of the nation so that the plan to replace the existing Provisional Constitution of 1950 had to be dismissed and Soekarno stipulated a Presidential Decree of 1959 (dated on 5th of July 1959) that dissolved
the Konstituante, re-imposed the UUD of 1945 and formed a Provisional Parliament (the
MPRS, the MPR Sementara).
16.Under the UUD of 1945, Soekarno held extensive executive powers. He introduced the Guided Democracy–which put all political activities under his guidance as the President of the Republic of Indonesia and the Pemimpin Besar Revolusi (Principal Leader of [the Indonesian] Revolution); popularised political slogan of NASAKOM–that stands for
Nasionalisme (Nationalism), Agama (Religion), and Komunisme (Communism)–in order to
unite all political factions; and formed an ad-hoc House of Representatives–called: the DPR-GR (the DPR Gotong Royong)–and the MPRS (Provisional Parliament) which composed of members appointed by Soekarno himself to provide the legal basis for all of his actions. Finally, in 1963 Soekarno earned the rewards from his political supporters when MPRS voted him as president for life of the Republic of Indonesia with the official titles of the
Presiden (the President), the Pemimpin Besar Revolusi (the Principal Leader of the
[Indonesian] Revolution), the Panglima Tertinggi (the Commander-in-Chief) and the
Mandataris MPRS (the Mandatory of the Indonesian Parliament–as the sole implementer of
the Indonesian people’s sovereignty).
17.The political crisis of 1965–known as G-30-S/PKI (the 30th of September Movement of the Indonesian Communist Party)–resulted in the slaughter of [more or less] a million peoplev by
a group of army officers [and their militias] led by General Suharto who accused the victims of being members or affiliates of the PKI. Suharto made a creeping coup against Soekarno and, finally, ousted Soekarno from his presidential office. Indonesia then entering the era of Suharto’sOrde Baru (New Order).
18.The Suharto regime claimed to be acting ‘purely and consistently’ (secara murni dan
konsekuen) based on the UUD of 1945. He popularised the Pancasilavi Democracy in accord
with his interpretation of the UUD of 1945–to legitimate his power. Through the P enataran
Pedoman Penghayatan dan Pengamalan Pancasila (the P4, the upgrading on how to
UUD of 1945 as a sacred document that could not be criticised publicly–and a person violating this prohibition would be accused as committing subversion act with the consequence of a severe punishment. He prevented any attempts to change the UUD of 1945 and passed a regulation that defines a referendum as a prerequisite in the procedures of the constitutional changes–which beyond the requirements determined in the UUD of 1945 itself. General elections to elect members of the Parliament have been conducted every five years and Suharto had always been filed as the only candidate President in each and every Plenary Sessions of the MPR. He enjoyed very wide, almost unlimited, powers as the [Indonesian] President under the UUD of 1945, the position that he held for 32 years.
19.Backed up by his troops, Suharto maintained political stability that provided the basis for the implementation of economic development programmes. The success stories of the Indonesian development have increased Suharto’s reputation and, in 1983, MPR granted Suharto the title of the Bapak Pembangunan (the Father of [the Indonesian] Development). Suharto also earned some international recognitions. The fantastic successful development of Indonesia from the world's biggest rice importer into a self-sufficient made the United Nations Food and Agriculture Organisation (the UN/FAO) welcomed Suharto to deliver his speech in front of the representatives from about 165 countries at the 23rd Conference of FAO in Rome, Italy on 14th of November 1985. Suharto then received a Gold Medallion from the UN/FAO on 21st of July 1986. At his 68th anniversary, the UN Secretary General, Javier de Cueller, awarded him a UN Population Award at the UN Headquarters in New York on 8th of June 1989 in accordance to his successful implementation of population and family planning programmes in Indonesia. Suharto’s junior army officers did not want to miss and also granted him the Jenderal Besar (the Five-Star General) on 29th of September 1997.
20.Regional financial and economic crisis that began in the mid-1997 finally hit Indonesian economics severely and on 8th of October 1997 Suharto requested the International Monetary Fund (the IMF) and the World Bank (the WB) to help recover the Indonesian economics. However, the economic conditions were getting worse while the public demands for the resignation of Suharto intensified. Preceded by the resignation of 11 ministers from his Cabinet, finally Suharto announced his resignation on 21st of May 1998–70 days after the
MPR re-appointed him for the seventh time as the President of the Republic of Indonesia. 21.The resignation of Suharto marked the end of the era of New Order and Indonesia entering
the era of Reformasi (Reformation). Public demands for constitutional reforms–in the fields of law, politics, and economics–arose and the constitutional changes were made for four times–in the General Plenary Session of MPR (in 1999) and in Annual Plenary Sessions of MPR (in 2000, 2001, and 2002).
(GBHN, the State's Guidelines) as the official state's policies that should be guided by the President in exercising his executive power was abolished. Lastly, the MPR is only a legislative body responsible for constitutional changes.
23.The amended Constitution establishes two new primary state institutions, i.e. the Dewan
Perwakilan Daerah (DPD, the Council of Local Representatives) and the Mahkamah
Konstitusi (MK, the Constitutional Court). The DPD works with the DPR as the legislature,
which particularly involve in drafting legislations on local autonomy, central and local relations, local formation/expansion/integration, management of natural and other economic resources, and central and local financial balance. Meanwhile, the MK is sharing the judicial powers with the MA (the Supreme Court) and conducting judicial/constitutional reviews on
the undang-undang (the laws) and providing trials for constitutional adjudications.
24.In addition to these two primary state institutions, the new Constitution also introduces two supporting state institutions, i.e. the Komisi Pemilihan Umum (KPU, the Commission for General Elections) and the Komisi Yudisial (KY, the Judicial Commission). Both are independent commissions. The KPU manages the general election which previously conducted by the Government (i.e. the Ministry of Home Affairs)–so as to be regarded as not neutral (from the incumbent). Meanwhile, the KY provides recommendations for the appointment of new Supreme Court judges–as a solution to overcome depravity in court of justice.
25.Encouraged by the spirit of Reformation, dozens of ‘public offices’ have been [and are] established in order to comprehend the State’s and the Government’s offices toward a democratic nation-state Indonesia. Among these auxiliary state institutions are the Komisi
Hukum Nasional (KHN, the National Law Commission), the Ombudsman Republik
Indonesia (ORI, the Ombudsman of the Republic of Indonesia), the Komisi Nasional
Hak-Hak Azasi Manusia (KOMNAS HAM, the National Commission on Human Rights), the
Komisi Pemberantasan Korupsi (KPK, the Corruption Eradication Commission), the Komisi
Polisi Nasional (KOMPOLNAS, the Indonesian Police Commission), the Komisi Kejaksaan
(the Prosecutorial Commission), and so forth.
26.Nowadays, the political situation in Indonesia is relatively stable. However, demands for further constitutional changes still exist. For example, members of the DPD have several times articulated their demands to share the Parliamentary authorities equal to those held by members of the DPR. There are also groups–apparently linked to the [retired] New Order officers–who allege that Indonesian reform has gone too far and demands to return to the 'original' version of the UUD of 1945 (and eliminate all constitutional changes that have been made during the Reformation). Several political elites sometimes have expressed their concerns to restore the authority of MPR in making something like GBHN–as the State’s guidance that must be abided by the elected President.Therefore, the democratic changes on the Constitution of the Republic of Indonesia are still overshadowed by many uncertainties.
i The Constitution of 1945–popularly abbreviated as UUD 1945–consists of three parts, i.e. the
Preamble, the Body (which includes: 16 chapters, 37 articles, 49 verses, 4 clauses of Transitional Rules and 2 clauses of Additional Rules) and the Explanations (general and per article). The description of this Constitution is presented in a separate presentation.
ii At that time, the Government of the Republic of Indonesia was in exile and centred in
Yogyakarta (as its capital). Other areas in Indonesian archipelago were governed by [Dutch's created] 15 autonomous states.
iii Excluded the Western New Guinea (West Papua/Irian)–as agreed on 1st of November 1949, the
status of the Western New Guinea would be determined through negotiations between the Republic of the United States of Indonesia and the Netherlands within a year of the transfer of sovereignty.
iv Fourteen representatives of minority groups, which serving as the additional members of the
Konstituante, were appointed by the Government.
v There is no exact number for the victims. The Indonesian National Committee for Human
Rights (the KOMNAS HAM) estimates the number of victims that have been killed because of being accused as PKI's members or supporters is ranged between 500 thousand to 3 million people.
vi
