Our Democracy is a Constitutional Democracy
At first, the 1945 Constitution stated that “Sovereignty is in the people’s hands, and is fully executed by the People’s Consultative Assembly (MPR)”.1 Die gezamte Staatgewald liegt allein bei der Majelis. MPR is known as the embodiment of Indonesians as a whole, the holder of the people’s conscience. Vertretungsorgan des Willens des Staatsvolkes. The old principle was a principle of state sovereignty. From the explanation of Prof. Dr. Soepomo, Chairman of The Small Committee (Panitia Kecil) who formulated the chapters and articles of the old 1945 Constitution, we can summarize that the principle had a similarity with the totalitarian principles of the German Nazi and Japanese Kokutei. In his oration in front of the BPU-PK court on May 31, 1945, Soepomo stated that: “..this is the totalitarian idea, the integralistic idea of Indonesians, which also took form in the true state planning composition.” Aside from that, he also stated: “…the national socialist way of thinking is a principle of unity between the leaders and the people and unity in the state is wholly compatible with the Eastern way of thinking.”2
Basically that thought dismissed the people’s sovereignty and subordinates each person under a common interest represented by the state. What exists and deemed important is the common interest.
After 2 years of discussions and consultations, in the 3rd phase of the amendment in 2001, the chapter was changed into “Sovereignty is in the people’s hands, and is executed based on the Constitution.”3
With that change, there was a shifting from supremacy of the People’s Consultative Assembly (MPR) to the supremacy of the constitution. In the old interpretation of the 1945 Constitution, MPR is the supreme institution, a political institution, with unlimited power. Thus basically, the highest sovereignty is in the hands of a political institution which according to the old 1945 Constitution, each of its decision is based on majority vote.4 It means that, theoritically, the 1945 Constitution practices the majoritarian democratic thought,5 where the will of majority is the deciding factor, eventhough it might not be in accordance to the constitution, because the power of MPR is unlimited.6
With the amendment of the 1945 Constitution, the democracy applied now is a constitutional democracy. The 1945 Constitution became the highest law that has to be obeyed by everyone, including the President, DPR (People’s Representatives), DPD (Regional Representatives), MPR (People’s Consultative Assembly), MA (Supreme Court), MK (Constitutional Court), BPK (Supreme Audit Agency), other governmental institutions and also by the people.
In other words, the power of the state is determined and limited by the policies of the 1945 Constitution, a constitution which carries respect towards human rights, deciding division and allocation of power, executing check and balances, emphasizing the independence of judicial power, giving the power of judicial review to the Constitutional Court (MK), limiting the period of a president’s office, requiring a honest and fair election every 5 years, and so on. This democracy is called a constitutional democracy, where the will of majority is not the deciding factor, instead the accordance with the regulations of the 1945 Constitution is the final testing tool. Also it is often called democracy based on the respect on human rights.
Thus our democracy is not only a democracy that recognizes majority’s will, but also one that respects human rights. Majority’s will cannot become a determinant of a decision, if for example, citizens do not receive equal treatment, when religious freedom is violated, and other citizens rights cited in the 1945 Constitution are also violated.
Law State and Rule of Law
Article 1 paragraph (3) of the 1945 Constitution after the amendment affirmed that “Indonesia is a law state.”7 In the old 1945 Constitution, the policy of a law state is not found in its Articles, but was written later in the Explanation part. Although it has been proposed and discussed since the start of the MPR Public Council in 1999, the inclusion of paragraph (3) was only agreed in the third year, after the boundaries and requirements of a law state is fulfilled. A law state cannot be only in name, but also has to be completed with related principals and has its own mechanism.
We can take note of the debate materials of the PAH I members and organize it into 12 principal definitions of a law state, which are:
1. Supremacy of Law.
2. Equality before the Law.
3. Due Process of Law.
4. Check and Balances.
5. Independent Executive Organs.
6. Free and Impartial Court.
7. Administrative Court.
8. Constitutional Court.
9. Protection of Human Rights.
11. Law as a Tool to Achieve State Goals.
12. Transparency and Social Control.
Through Article 1 paragraph (3) that established Indonesia as a law state, confirming that sovereignty is in the people’s hands and executed according to the 1945 Constitution, then it completes the existence of Indonesia as a constitutional democratic country. It means that in our democracy, people sovereignty (democracy) walks along with supremacy of law (nomocracy).
11945 Constitution Chapter 1 article (20) before amendment.
2RM. A.B. Kusuma, Lahirnya Undang-Undang Dasar 1945, Revised Edition, Badan Penerbit Fakultas Hukum Universitas Indonesia, 2009.
31945 Constitution Chapter 1 article (2) after amendment.
41945 Constitution Chapter 2 article (3) after amendment.
5In reality, through scheme, the majoritarian democracy was changed into a guided democracy, controlled by the rulers that dominated the MPR through various means. Actually the term guided democracy and those similar to it was not suitable, because what happened was the rulers will or authoritarianism.
6In the New Order era, President Suharto had full control of the MPR, so in reality the highest power was allocated from the MPR to President Suharto.
7In Indonesia, the definition of state of law is the same with the definition of rule of law or rechsstaat, where law doesn’t only emphasizes on the formal juridical aspect (rule of law) but also that law must be fair and respects human rights (substansive rule of law).
(This Paper was presented in the Church and Politics Strategic Forum held by Leimena Institute in Jakarta on February 9-12, 2015)
Drs. Jakob Tobing, MPA
President, Leimena Institute
Jakob Tobing is one of the most prominent architects of the new democratic Indonesia. He played an instrumental role in Indonesia’s transition from the authoritarian rule to democracy in 1998. He was then entrusted as the Chairman of the 1999 National Election Committee and the 1999-2004 Parliamentary Commission on the Constitutional Amendment – the two important bodies that decisively replaced authoritarianism with democracy in Indonesia. Under his leadership, the constitutional amendment has guaranteed the principles of democracy, rule of law, and human rights, which is now seen as a model by many other countries. He was a student leader against the old order in 1966, appointed as member of parliament in 1968, and became the Vice Chairman of the ruling party during the Suharto’s regime. But during the height of the authoritarian regime, he joined the opposition and was invited to join and establish the reform PDIP party by its Chairman Megawati Soekarnoputri, who later became the President of Indonesia. President Habibie decorated him with Mahaputera Utama medal in 1999. After more than three decades as a member of parliament, in 2004 he was appointed as the Indonesian Ambassador to the Republic of Korea, a leadership role which again he performed so outstanding that the Republic of Korea awarded him the Gwanghwa medal—the country’s highest diplomatic award. He received his graduate degree from the John F. Kennedy School of Government, Harvard University, USA.