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Indonesian Constitutional Reform 1999-2002

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Indonesian Constitutional Reform 1999-2002 IINNDDOONNEESSIIAANN CCOONNSSTTIITTUUTTIIOONNAALL RREEFFOORRMM 11999999--22000022 AN EVALUATION OF CONSTITUTION-MAKING IN TRANSITION DENNY INDRAYANA, PH.D KOMPAS Book Publishing Jakarta, December 2008 Abstract In 1999, the MPR ( Majelis Permusyawaratan Rakyat , the People’s Consultative Assembly) enacted the First Amendment to the 1945 Constitution of Indonesia. Over each of the next three years, it passed a further amendment. Despite their important contribution to Indonesia’s transition from Soeharto’s authoritarian regime, no comprehensive study has been made of these four amendments, and the process by which they were produced. This thesis is an attempt to fill this gap, by critically evaluating the process and outcomes of these amendments, in the context of constitutional theory and the experience of other countries, in particular, South Africa and Thailand. This thesis argues that the 1999-2002 constitutional amendments lacked what have widely been accepted as key features of a democratic constitution-making process: (i) there was no clear plan for determining the key elements of the process, such as when the amendment would occur, how it would be conducted, and what the outcomes would be; (ii) the MPR failed to win the people’s trust in its capacity as a constitution-making body; and (iii) public participation was limited and badly organized. Many of these problems with the reform process, however, related to fundamental issues within the Constitution itself. It contained two aspects seen as crucial to the identity and survival of the country by most nationalists, including the military: the rejection of an Islamic state and the imposition in its place of a nationalist state ideology, the Pancasila , contained in the preamble to the Constitution. Many nationalists feared that opening the Constitution to real change would jeopardize these positions, which they saw, and still see, as non-negotiable. The result was a slow, patchy and tentative process marked by constant negotiation and deal-making as most stakeholders sought a way to dismantle Soeharto’s dictatorship without disturbing these twin nationalist principles. Despite these problems, at the end of the process, the Constitution was more democratic in form. In particular, the amendments established a clearer separation of powers between the executive, legislature and judiciary; and more impressive human rights protections. This is because the euphoric transitional period provided a setting that encouraged open constitutional debates in the MPR and allowed public participation in these debates, despite the flaws in the MPR’s system for public engagement. The amended Constitution remains, however, far from perfect. This thesis recommends further amendments to, first, strengthen the system of checks and balances introduced between 1999 – 2002; and, second, to entrench the preamble and guarantee the difficult relationship between Islam and state in their current form. i Acknowledgements To understand the work of the MPR in amending the 1945 Constitution, I have studied for three years all of its meetings from 1999 to 2002. In the course of these labors many people have helped, advised and supported me in many different ways. I want to take this opportunity to thank them. Without their help it would have been impossible for me to finish the thesis. It is impractical to list everyone’s name, but I must single out a few. First of all, I am indebted particularly to two people who have given me encouragement, intellectual stimulation and guidance. They are my supervisors: Professor Cheryl Saunders and Associate Professor Tim Lindsey. Their corrections, critical remarks and suggestions have allowed me to develop my ideas and prepare this thesis. I also owe special thanks to the Director of Language and Learning in the Faculty of Law, Cheryl Baker, who did a great deal to correct and improve my English text; and to the principal research assistants of the Asian law Centre: Jeremy Kingsley, who proofreaded chapters one and two of the thesis; Helen Pausacker, who checked the glossary; and Kerstin Steiner, who helped me to check the footnotes and bibliography. For the financial assistance and facilities over my stay in Melbourne that made it possible to write this thesis, my gratitude goes to the AusAID Scholarship program. Also the Centre for Comparative Constitutional Studies and the Asian Law Centre of the University of Melbourne provided me with encouraging environment to work in. Special thanks should be given to Lucia Wong and Kathy Menezes , the AusAID Liaison Officers, who have continually provided invaluable assistance. I would also like to thank Kathryn Taylor of the Asian Law Centre for her administrative support. During my fieldwork in Jakarta in 2003, I was greatly assisted by the Centre for Electoral Reform (Cetro), the Freedom Institute and the Centre for Strategic and International Studies (CSIS) who allowed me to use their facilities, especially their excellent libraries. I was honored and very lucky to be a visiting scholar in these three prestigious institutions. For that, my thanks go to Smita Notosusanto, Hadar N. Gumay, Rizal Mallarangeng, Ulil Abshor Abdalla, Indra J. Piliang and Muhammad Qodari. ii In connection with my fieldwork in Jakarta, I extend special thanks to Peri Umar Farouk, Bambang Soetono, Refli Harun, Taufik Rinaldi, Yanwar Malaming, Rikardo Simarmata, Wigati Partosedono and Sri Wiyanti. I am lucky to have ‘brothers and sisters’ such as you. Thank you for sharing your friendship and your valuable comments on my thesis. I deeply appreciate all of the members of the MPR who have given their invaluable time for the interviews with me: Jakob Tobing, Slamet Effendy Yusuf, Theo L. Sambuaga, Ali Masykur Musa, Zein Badjeber, Lukman Hakim Saifuddin, Patrialis Akbar, Agun Gunandjar Sudarsa, Fuad Bawazier and Permadi. Additionally, thanks for granting me interviews and giving me support go also to Professor Jimly Asshiddiqie, Professor Sri Soemantri, Professor Harun Alrasid, Professor Moh. Mahfud MD, Todung Mulya Lubis, Bambang Widjojanto, Chusnul Mariyah, Mochtar Pabottingi, Denny JA and Andrew Ellis. Personally I would like to thank Abang Adnan Buyung Nasution who supported not only my doctoral research, but also my earlier masters degree. To Bivitri Susanti and Zainal M. Hussein, thank you for sending me relevant documents from Jakarta. To Saldi Isra, you know that your support is one of the reasons why I can finally submit this thesis. In Yogyakarta, I must thank the leaders of the Faculty of Law of the University of Muhammadiyah Yogyakarta, University of Gadjah Mada and the Indonesian Islamic University. Thanks in particular to Professor Ahmad Mursyidi, Istianah ZA, Professor Ichlasul Amal, Burthansani and Jawahir Tanthowi. Extraordinary thanks for my ‘family’ the Indonesian Court Monitoring (ICM), Keluarga Muslim Fakultas Hukum (KMFH) and Lembaga Bina Kesadaran Hukum Indonesia (LBKHI): Kamal Firdaus, Jeremias Lemek, Sahlan, Totok Dwi Diantoro, Kusharyanto, Erina Cahyaningsih, Abdul Mukti, Wasingatu Zakiyah and Nasrullah. Also Pak Garda Utama Siswadi and all of his staff in Garda Utama Siswadi and Partners, especially, Akhmad Jazuli and Muhammad Arqom. I am indebted to you not only morally, but also financially. Also in Yogyakarta, thank you to my ‘brothers’ in Islam, Iwan Satriawan, Mas Narno and Cak Hasrul Halili for all their prayers and support. I am deeply grateful to my father and mother, Acep Hidayat and Titien Sumarni, for their understanding and sacrifice to support my study. I would not be where I am now without your iii guidance and love. Thank you also to my father and mother-in-law, Machmud Masykur and Fatriyah, and all of the families in Pekalongan, Yogyakarta and Bandung for their prayers for my success. My gratitude also goes to my brothers Tedy Indrajaya and Rudy Indrakesuma and my sisters-in-law, Murtafiqoh Hasanah and Audah Masykuroh for their attention and support. Again, to all of the individuals and institutions mentioned above, I would like to express my sincere gratitude. None of them, of course, is responsible for any mistakes in this work. All errors are mine. Finally, for my wife, Ida Rosyidah, and my two malaikat kecil , Varis Haydar Rosyidin and Varras Putri Haniva, who endlessly helped, supported, prayed and shared all of my problems and worries and, of course, sacrifices, the most. Bunda , I just want to say, without your boundless patience and encouragement, not even one word could have been written. Thank you for being always there for me. Please remember, I missed you all during the countless days and nights in the library or in my gubuk derita . Above all, alhamdulillah , thank you Allah. Melbourne, February 2005 Denny Indrayana iv Table of Contents ABSTRACT .................................................................................................................................i DECLARATION.............................................................................. Error! Bookmark not defined. ACKNOWLEDGEMENTS............................................................... Error! Bookmark not defined. TABLE OF CONTENTS..............................................................................................................v GLOSSARY.............................................................................................................................xiii LIST OF TABLES....................................................................................................................xvi
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