Another important historical evidence is that the amended 1945 Constitution includes the respect towards human rights.
Requirements in the 1945 Constitution acknowledges that Human Rights is not something given by the Constitution nor the state. Human rights is inherently possessed because one is human. Essentially, humans are imago Dei. State acknowledges and respects them. Contrary to the old 1945 Constitution which states that human rights exists if the Constitution enforces it.
acknowledgement of Human Rights complies with and supports our national understanding of demos. In the time when the 1945 Constitution was still contructed in 1945, in order to be a President, one had to be a native and had Islam belief. Then, the old 1945 Constitution stressed that a president had to be a true native Indonesian. While the amended 1945 Constitution states that a President should be one who is Indonesian since birth.
Human Rights chapters in the 1945 Constitution firms the state warrant for the independence of their people to hold their own beliefs and practice according to their religion.
Aside from that, the 1945 Constitution acknowledges the rights of indigenous culture, as long as it is still living and is in accordance with the development of society and the principle of a unitary state.
We have to admit, that the acknowledgment hasn’t been fulfilled and there are several policies that needs to be enforce in order for it to go well.
The making of policies
Article 20 section (1) of the 1945 Constitution after amendment states that the Peoples Representative holds power to make policies. But section (2) of the same article emphasized that every policy plan can only be goaled if it gains joint agreement from the Peoples Representative and the President. So, in making policies, the Constitution ordered the Peoples Representative and President to work together. The Peoples Representative as an institution has to confer with the President as an insitution to get a joint agreement. And if there are two sides conferring, then the decision cannot be taken through voting, but through acclamation or deliberation.
With such background, in the presidential system according to the 1945 Constitution, the President does not need a veto right, like they did in the United States.
Even if for example, the Peoples Representative and the President were not present or intentionally deviates from the constitution, the policy resulted from the joint agreement will be trialed for its constitutionality by the Constitution Court. The trial will be done transparently, to know whether the policy is in accordance to the requirements of the 1945 Constitution or not, whether it respects human rights or not, for example. This system is a way to ensure that the 1945 Constitution is obeyed as the highest law in the country.
Social justice rule of law
The 1945 Constitution emphasized that the state has to be active in pursuing development and social justice for all its citizen. In that case, the concept of social justice is not a concept of access to justice, but a concept of substantive independence. It means that every person is allowed to achieve their potential, not experience discrimination, and is guaranteed to have a decent living as human.
With that intent, the state has to provide access to developments, like enforcing mandatory basic education, providing healthcare, giving open access to information, building and fixing transportation facilities, providing enough food, clothes, and shelter, preventing monopoly for self profit, and other things.
1.Article 28A s/d 28J UUD 1945 after amendment.
2.Article 6 section (1) UUD 1945 after amendment.
3.Article 28E, 28I dan Article 29 1945 Constitution.
4.Article 18B section (2).
5.Unfortunately, practice in the past governments, President SBY (Susilo Bambang Yudhoyono) passed the decision regarding the Policy Plan to the process inside of the Peoples Representative, like in the parliamentary system. The attitude was seen in the making of the MD3 policy plan (UU no 17/2014) and the Regional Head Election (UU no 22/2014) which was problematic.
6.In the conversation for the comparative study in Capitol Hill, Washington DC, a US constitution expert confessed that even in US, whose people is way more developed and experiences, the President’s veto rights toward a Policy already legalized is always avoided, because it has big social-political impact. Thus, the President and the Congress usually used a lobbying system, looking for a informal joint agreement first, before a Policy Plan is legalized.
7.See Articles 31, 32, 33, 34, and Articles concerning Human Rights, especially Article 28H in 1945 Constitution.
(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.